State v. Crowder

P.2d Arizona, Appellee, STATE of CROWDER, Jr., Appellant.

Herman

No. CR-86-0380-AP. Arizona,

Supreme Court Banc.

En 4, 1987.

Dec. Corbin, Atty. K. Gen.

Robert William Schafer, Adler, III, Gotkin Asst. J. Vicki Gen., Phoenix, Attys. appellee. (former), P. Ross Lee W. ing agreement Dean Trebesch counts. The form Crowder (current), Maricopa County Public Defend- signed stated that a fine imposed could be Spencer Heffel, er D. Deputy Public “[rjestitution and that of economic loss to Defender, Phoenix, for appellant. the victim ... will be required.” At сhange proceedings of FELDMAN, Vice Chief Justice. day, same explored trial the vol- Crowder, pleaded Herman Jr. guilty to plea. untariness Crowder’s He fully degree murder, the crimes of first armed questioned defendant about his under- robbery, degree burglary. and first The standing range for sentences each signed form he contained of the counts to which he was about to printed provision regarding restitution. plead guilty, impositiоn and discussed the plea agreement, Pursuant high $150,000, of a as fine thirty- with a court sentenced Crowder to consecutive percent surcharge seven per count. Re- terms of life imprisonment on the murder garding restitution, however, the court and twenty-one years count on each of the only: asked addition, other counts. the court or- you And do further understand that the him pay dered restitution in the amount law—the Court can that you He now seeks withdraw make restitution for economic loss from his ground on your victim have suffered?1 that it was voluntarily made because he Reporter’s 24, 1986, Transcript, June at 5. was unaware of the amount assent, Crowder indicated his and the court might pay. appeals ordered to He accepted his guilty pleas. directly to pursuant this court to Ariz. Const, 5(3) presentence report The that followed аrt. and cal- 13-4031 § surviving culated the (Supp.1986). victim’s economic loss $37,000.” Indeed, “approximately I. FACTS computation approximate. See Photo- Appeal, stated Instruments of ord on victims, couple, a Mesa returned ‍​‌‌​‌‌‌​‌‌​​‌‌‌​​‌‌‌‌​​‌‌​​‌‌​​​​‌​‌​​​​‌‌‌​​‌​‌‍100(i). hearing At sentencing evening De- February home 4, 1986, cember the court sentenced to find a Crow- burglary progress. Before the der home, imprison- on the murder count to intruder left life he shot and killed рossibility parole ment without victims with a twen- .22-caliber hand- gun ty-five years. robbery On sexually assaulted armed and beat the counts, approximately burglary other. He took the court sentenced $200 in cash, him plus jewelry twenty-one years, to terms of each credit cards. consecutively run the life term Subsequently assailant, identified as the addition, each other. ordered charged Crowder was arrested and with him the amоunt of murder, degree aggravated assault, first $37,000 pursuant 13-603(C) to A.R.S. § robbery, degree armed first burglary, and (Supp.1986). appeal followed. 24, 1986, sexual assault. On June reached, permitting Crow- der guilty murder, degree first II. DISCUSSION robbery, armed and first burglary A. Issues Procedure promise consideration for the state’s guilty seek the that his penalty. death The counts Crowder maintains aggravated intelligently assault and was not sexual assault dismissed, were to be and there was was not advised how much restitution he agreement on the pay. sentences for the remain- would have to relies on State v. 26.4(a), procedures presentence report. ascertaining No formal Rule exist for Ariz.R.Crim.P., A.R.S., prepara- advance of forbids the plea. The amount of restitution reports prior to the time a tion of such evidently in this case—and in most others—was plea is entered. сomputed from information contained Crowder, did Phillips, like learn the (1987), which this court decided on Febru amount of restitution he was to pay. ary appeal 1987. Because Crowder’s date, on that his invocation of pending judgment Vacating the and sen is not erroneous.2 See State v. tence, in Phillips this court held that LeMaster, 159, (App. 137 Ariz. 669 P.2d 592 a defendant “thoroughly under- [cannot] 1983). stand” consequences of agree- his We nоte ment to that Crowder has not make restitution he is un- if proper procedure. restitutionary aware

followed now seeks amount of imposed. that can plea Knowledge to his of that withdraw have the vacated, restitution can be ordered for the judgment guilt of all on the vic- basis tim’s “full loss” is economic insufficient. unconstitutionality change of wrought by Phillips. proper pro law appellant ... that conclude [W]e cedure would have been to submit the thoroughly mat the consequences understood judge by petition post- ter to the trial agreement pay to restitution of 32.1(a) (g), conviction relief. See Rule if the record at contains least one of the Ariz.R.Crim.P., following: (1) 17 A.R.S. Rather than fol a plea statement procedure, simply setting specific forth a low that Crowder raised dollar restitution; (2) validity of amount of a in his statement indicating agreement the defendant to appeal Ordinarily brief. would not take specific a amount cognizance of dollar of restitu- an issue raised for the first tion; (3) warning by judge the trial appeal time leave on would prior accepting plea the defendant’s proper to make the motion before the trial specific that he can order restitution of a however, rеcognize, court. We dollar amount. appeal pending was when Phillips instant was decided. It is that if the obvious mat 535, (emphasis at 733 P.2d 1118 Id. add- judge, ter were resubmitted the trial ed). record, like Phil- defendant’s would defendant’s lips’s, “thorough contains no indication of a granted, leaving motion be the state to understanding” of the amount of restitu- appeal. Phillips requires Because clarifi compels tion and thus the conclusiоn that cation, and in this case the issue is one that “agreement ‍​‌‌​‌‌‌​‌‌​​‌‌‌​​‌‌‌‌​​‌‌​​‌‌​​​​‌​‌​​​​‌‌‌​​‌​‌‍defendant’s make restitu- decide, only this court can in the interests was involuntary unknowing- tion” judicial economy we turn to the merits made. of the case. Of the word “record” is not change limited to the formal record of the Knowing? B. Was Plea Defendant’s plea proceedings. When the defendant pleaded guilty the defendant plea unknowing claims his and thеre offense of leaving the scene of an involuntary, simply fore is not involving personal injury. accident Like told in court what Crowder, he plea agree- had entered into a Thus, any source. what knew from requiring ment economic loss example, counsel if defense had learned to the victim. Whereas written Crowder’s from source the economicloss was amount, $30,000 $40,000 range was silent and had stated, Phillips’s “amount of be deter- informed defendant that restitu $ somehow amount, 152 Ariz. P.2d at would be such an mined.” 1117. tion Crowder, change Like advised at the would know ing though even information was change proceedings that the court same restitution, imparted by at the for not told would order but was Levario, 118 sentencing proceedings. mal v. the amount. Not until his hear- State Nunez, contrast, change. See State v. subsequent made in the sub- (1973). agreements per law se stantive unrelated to 109 Ariz. plea agreements validity does not affect the (1978) (extended Ariz. P.2d issue in those cases was whether know- ing regard record must be examined with they would knowledge have special plea agree- sentenc- defendants’ did, conditions); Ellis, ments involuntary. We held that Phillips presented Lukens and ex- (1977) fairly (dealing 572 P.2d 791 with na- traordinary circumstances. who range charge possible ture of sen- hаd more benefitted no than from her tence). $100 Similarly, pleads where defendant quite likely placed and who was to be to a statutorily prescribed crime which has probation, confronting herself found monetary parameters, defendant would figure thirty-six times the necessarily expect reason pleaded crime to which she had amount of restitution to be within those guilty. pay sub- a parameters. See, 13-1802(C); e.g., A.R.S. § dаmages stantial amount of restitution for Lukens, 502, State v. 151 Ariz. 729 P.2d cf. by caused the crime with which was he (1986). 306 charged pleaded and to which he had procedural posture Because of the of this guilty. case, inquiry there has into the requires The law that a be made extended record. the state main- i.e., voluntarily, “with sufficient awareness adequate tains that had defendant knowl- likely relevant circumstances and edge of рotential monetary liability be- consequences.” States, Brady v. United cause both the 748, 742, 1463, 1469, 397 U.S. 90 S.Ct. 25 proceedings the maximum (1970)(emphasis added). L.Ed.2d 747 Even $150,000, fine thirty-seven plus percent if one problem were to assume that count, surcharge per was expressly set was not one proportions, of constitutional forth. We such rejected suggestion a our rules nevertheless that a case, supra. pre-Phillips In this accеpted be if “only voluntarily and intelli- we held that “a defendant cannot be re- 17.1(b), gently Rule made.” Ariz.R. quired in an amount ex- Crim.P., A 17 defendant is to ceeding statutorily-prescribed monetary pa- special “any regard- informed of conditions pleads rameters of the to which he sentence____” 17.2(b). Rule can One voluntarily intelligent- unless say equanimity with relative ly agrees higher amount.” a Id. at amount of restitution Lukens and Phil- 505, 729 P.2d We judg- at 309. vacated the lips was a circumstance relevant ment and included sentence that respective decision of defendants $9,132.65 despite the fact that Lukens jury plea. waive enter trial and a we While fully the possibility informed of of a do not confine and Lukens to their $150,000 high plus thirty-seven fine as as facts, believe that such unusual 503, percent surcharge. at 729 P.2d Id. cases is of restitution plea. relevant to the decision to enter a therefore, record, On this under Lukens Clearly, Lukens and do not stand and Phillips, proposition every plea for the is to be voluntary pay restitution was not if vacated the defendant lacked bit knowledge he had no of the amount. information. face, then,

The issue we is not whether the In stark to Lukens and contrast voluntary, jeopardy this defendant was dire whether knowledge Crowder’s lack of capital A prеsen- sentence. review of the the amount of restitution rendered the en- report aggravating tence circum- indicates plea agreement involuntary. tire Surprised elderly stances. ‍​‌‌​‌‌‌​‌‌​​‌‌‌​​‌‌‌‌​​‌‌​​‌‌​​​​‌​‌​​​​‌‌‌​​‌​‌‍home- committing de- burglary, owners while Agreement C. Plea Voluntariness gagged them, fendant assaulted bound and a Whole them, times, four shot the husband beat unconscious, presents questions raped This case the wife until she was somewhаt her, left her for dead. Not Phillips. evidently different from Lukens

481 shooting of the un only was the husband cise amount of restitution would have been senseless, necessary, unprovoked, a relevant consideration on defendant’s showed, best, complete equation. defendant dis side of the live regard whether wife would Where the defendant has received Aggravating exist—pe circumstances die. the full of the plea bargain, benefit cruel, and, heinous, cuniary gain arguably, court will not allow him to vacate the depraved conduct. See A.R.S. See, agreement. e.g., Brady, 397 U.S. at 13-703(F); Clark, 428, Ariz. 126 757, 90 (subsequent S.Ct. at 1473 substan 436, 888, 896, denied, 616 P.2d cert. which, changes hindsight, tive in the law 1067, 796, U.S. S.Ct. 66 L.Ed.2d plea bargain show to have been un (1980); Correll, 468, State v. 148 Ariz. 479- wise); Nunez, State v. (1986). 732-34 (1973); Watson, P.2d 380 People v. Further, the facts contained in the Cal.App.3d (1982). 180 Cal.Rptr. 759 true, report, sentence if leave little doubt point More to the of this a that defendant would have been convicted. ‍​‌‌​‌‌‌​‌‌​​‌‌‌​​‌‌‌‌​​‌‌​​‌‌​​​​‌​‌​​​​‌‌‌​​‌​‌‍should not be allowed to vacate went home killing from the with blood bargain unless information lacked clothes, carrying on his the victims’ credit actually was relevant to the decisionmak cards, purchase clothing which he to used ing process. Runck, United States v. and other girlfriend (8th items. His live-in Cir.1987). F.2d 470 missing Where the him turned in she killing after read of the go information not doеs to defendant’s es in newspapers. gave the objective Defendant a de- in making agreement, sential the tailed police. confession to the where it secondary involves or minor terms plead, collateral to the decision to Thus, this defendant and his counsel where it is “of the essence” of the should have expected and likely conviction agreement, public in the is interest that impositiоn of the death If penalty. death the be enforced. See imposed, were not the best that could be Rivest, 435-36, 428-31, 106 Wis.2d hoped for on the first murder 406-07, (Abraham- (1982) N.W.2d charge imprisonment was for life without son, J., dissenting) (arguing that the de possibility parole for twenty-five calen- fendant’s breach a nonmaterial covenant (see years 13-703(A)) dar and like- plea bargain in a should not entitle the aggravated consecutive sentences for to the arrangement). state rescind charges. the sexual assault other Giv- case, en this evaluation the present must In the the formal record conclude that defendant fully could not refuse establishes that defendant was aware any plea bargain. reasonable The deal he the and relevant essential terms the made to penal- enabled him avoid the death and of its material conse- resulted, also, ty and him, in quences including dismissal the to the fact that he charges. assault would have to make restitution some amount and might fined over context, Seen this the of res- Runck, Defendant supra. See neverthe- titution loss quite financial seems incon- arrangement appears less made an to sequential process. to the decision-making entirely advantageous to him. Nevertheless, 13-603(C) because A.R.S. § Thus, quite from it is the record before us ordered, requires that provi- restitution be clear that the amount of restitution was sion made for it the was irrelevant. as defendant well was aware. The know, thing he did not very because it had not Of the record before us is yet computed, been sketchy. assumptions was the from amount We have presentence report. restitution he would have for fu- statements in the We bills, bills, neral proper- medical and loss of that the of res- have also assumed amount ty. Given possible the irrele- subjectively fate that awaited titution would been defendant, advantageous plea of- could not 45-year-old vant to a man who fered, very thirty it seems unlikely prison from expect release appears at the and who

forty years earliest where the facts indicate that the defendant prеsentence report to have willing though from there even any part funds ever without length on the of sentence or ordered amount of restitution. How- imposed. the amount of fine that could be ever, final decision we should make hardly likely willing It is that a defendant nothing when in this case we have though it to enter a even entailed original way of evidence. length uncertainty as the fact or imprisonment would have been deterred III. CONCLUSION know pleading from he did not Thus, is the case remanded to the trial precise amount of restitution. evidentiary hearing. an At court for case, therefore, ordinary In the defense hearing, apply the trial court should present- quite counsel should be selective opinion legal principles stated in this case ing claims such as that whether the extended record determine We do not invite а wholesale as- bench. knowledge of shows defendant had bargains, advantageous to sault on not, If amount restitution. addition, when defendant made. not- must then determine whether such lack of ante, inquiry ed not be confined to knowledge was relevant and material proceedings. formal If the extended making plea agreement. very record or the nature of the court finds from all the evidence that the which the is entered indicates that approximate amount of restitution un- was or have been aware should to defendant relevant known and was a approximate of restitution to material factor in decision imposed, then relevance be the the should plead, apply then trial court issue, not even it is an will arise. Where Phillips and vacate the entire Lukens and a very the facts will be examined with state, plea. In that will the eye. Plea bargains critical should be hon- obligation be under no to offer defendant parties, ored and withdrawal will any plea bargain. or the same the court only may fairly allowed when it be said be finds, contrary, to the that the voluntary that the deal was not restitution was not a relevant and material lacked information of true im- factor, appli- Phillips then Lukens and are portance decision-making process. in the provision. the De- cable restitution, agreed nev- fendant GORDON, C.J., and and CAMERON agreed validly er the amount HOLOHAN, JJ., concur. mandatory is Restitution under A.R.S. 13-603(C),however, plea if the is and § MOELLER, Justice, in concurring stand, evidentiary he is entitled an hear- dissenting part. and in part of resti- to determine the exact amount opinion in of the portion I concur that pay. must tution he appellate that courts holds which prompts and bar Concern bench ordinarily consider re- this state will not thought. majority great final plea agreements quests to withdraw from in- cases the defendant will have been presented not that have first been enters formed to the time he agree with the court. I also trial required. guilty plea that restitution will be apply not that rule majority that should may told While particular To do so would in this casе. amount, of the cise either the nature Phillips the trial to follow court bargain, plea charges, advantage of the agreement, a aside the result and set the circumstances individual defend- clearly inappropriate. is which ant, probable length the sentence or the the merits of the voluntariness It is on ordinarily very clear that the make it disagreement find myself that I issue could not precise amоunt of restitution agree- majority. I ‍​‌‌​‌‌‌​‌‌​​‌‌‌​​‌‌‌‌​​‌‌​​‌‌​​​​‌​‌​​​​‌‌‌​​‌​‌‍believe with the in the decision- have been a relevant factor ment, provision, is including the restitution making process. is this so Especially voluntary, that Rule 17.1 and Rule clearly be ordered Arizona Rules of Pro- exceeding statutory 17.2 of the Criminal in an amount with, fully complied cedure have of the theft to which offense the defendant grounds has no have his pled. the defendant the majority оpinion While in this aside, that there is for a plea set no need sharply case has desirable effect of hearing, “relevancy” convic- that the Phillips also limiting both should new, tions and sentences be affirmed introducing has the rela- effect respects. all litiga- tively type “relevancy undefined concept tion” and a new of divisible 13-603(C) requires the defend- agreements. litigation The new ant to make restitution for the first concept should not to a necessary new be murder, robbery, armed first and the proper resolution of the is- voluntariness degree burglary guilty. pled which he sue. requirement of law was communicated coun- writing to defendant and to his I a member of the when was not court plea agreement sel in written which either I Lukens was decided. signed. they By signing both read precedents am court mindful plea agreement expressly lightly should not be overruled and certain- part consented to restitution as of his so as a inconsequential not for reasons Additionally, pro- sentence. personnel on the court. We now court, ceedings open enough experience with again personally advised the defendant of creating great is know that it mischief requirement defend- justice in- system. Arizona’s criminal again expressly ant stаted he under- example stant case is of that mis- required. stood that restitution would be fair, effort to scrupulously chief. an be No be more should to demonstrate announced a wide- plea agreement. the voluntariness of the ranging proven rule which has now per- I unnecessary. both unworkable entering into After infirmity ceive no whatsoever either under issue, such one in parties as the are imposing constitution Rule 17 in hearing entitled to restitution on the upon been defendant who has amount of restitution and of its the manner it, requires advised that law has who payment. error a hear- occurs at such it, agreed right who has to have ing, Nothing it is reviewable appeal. hearing man- here, relative amount and remotely suggests ex- involuntariness reasons, payment. ner of its For these I overly cept language Phillips. broad suggest rеspectfully that we should revisit validly I cannot how divine a defendant can rule now withdraw the broad guilty, leaving pro- it to subsequent announced, attempt there rather than ceedings gets pro- to determine whether he piecemeal in a its effect fashion. fifty years prison, bation or but cannot validly plead guilty leaving the amount of pro- be determined in later

ceedings. majority opinion notes,

As the Luk- factual

ens and involved unusual present

circumstances which are not here.

Phillips could have been decided that,

basis absent having damages not be ordered for which relationship

causal to the crime to pled. Lukens could that, absent decided the basis

Case Details

Case Name: State v. Crowder

Court Name: Arizona Supreme Court

Date Published: Dec 4, 1987

Citation: 747 P.2d 1176

Docket Number: CR-86-0380-AP

Court Abbreviation: Ariz.