*1 THE thеy But have recom- proceedings COURT: this decision or for other mended sistent with Rule consecutive sentences 17.4. lean but I toward concurrent sen-
tences____ FIDEL, P.J., EUBANK, J., concur. Well, I I’m think bound
agreement anyway. I don’t think can
give her concurrent sentences. correct,
THE your STATE: That’s honor. got give
THE COURT: So I’ve
her
sentences.
consecutive
Defendant’s Anders brief makes ar- gument this issue. Arizona, about The state’s brief Court Appeals begins by quoting paragraph Departmеnt seven Division E. plea agreement expressly states that May 1990. “any stipulated either to or sentence rec- Review Denied Oct. paragraph ommended herein two is not binding Shortly on the court.” thereafter
the state’s brief “the same states that
court authority ap- lacked the to sentence
pellant stipulated anything less than the
sentence.” 17.4(d),
Under Rule the trial by any sentencing
not bound provision if agreement after accepting the
agreement reviewing pre-sentence
report, provision inappropriate. it finds finding judge’s
That occurred here. A plea agree
hands to be are not tied
ment; judicial merge to do would so
sentencing into prosecutor role that of the attorney.
and/or judge’s re defense
sponsibility beyond rubber-stamp extends
ing plea See agreements. sentence Court, Superior
Smith v. sentencing Once a
judge indicates intent to from a deviate
stipulated plea agreement, in a sentence
both the state the defendant have a from the If withdraw agree
neither side from the withdraws
ment, judge may proceed impose the
more sentence. vacate sen- therefore
tence and remand to the trial court for a sentencing proceeding
new consistent *2 Corbin, Atty. by Jessica
Robert K. Gen. Div., Funkhouser, Counsel, G. Chief Crim. Gen., Grant, Atty. R. Asst. Gerald Phoenix, appellee. for
Allen, by Michael D. Kimerer & LaVelle McMath, Kimerer, Tonya Garth Smith Phoenix, appellant. for
OPINION SHELLEY, Judge. (defen-
Appellant Edgar Jacob Wideman dant) first-degree pled guilty to murder grand pursuant to a two counts August de- On Eric Kane after which he fendant killed $3,000in trav- stole an automobile and over recovered eler’s checks. The vehicle was $1,500 together in traveler’s checks. forged and cashed trav- The defendant had $1,500. approximating checks eler’s change-of-plea hearing, the trial At the the terms of the court considered agreement and found that the defendant knowingly, pleas entered the intelli- had voluntarily. The defendant gently, imprisonment life without was sentenced to parole twenty-five years possibility of for charge, and to first-degree murder years on the two aggravated terms of ten theft, other concurrent with each counts of the life sentence. and with judg- timely appealed the The defendant appeal, the de- and sentences. On ments (1) pleas argues that: his were fendant of restitu- involuntary because the amount accept- properly prior sеt tion was not (2) for plea; travel ance of the counseling ex- family expenses and (3) error; penses was assessed imposed aggravated improperly imprisonment on the theft counts. terms of $8,601.68 expenses, THE PLEA INVOLUNTARINESS OF counseling. defendant contends involuntary because the amount of Immediately prior hearing, defen- restitution exceeded the amount estimated 68-page dant memo received *3 prior entry guilty pleas. In to the of his requested for detailing the items restitu- the agreement, restitution $30,- tion a totаl amount excess of with was but there was testified in detail The victim’s father that mentioned. state asserts the de- respect requested with to the amounts and fendant has waived his to withdraw to subject was cross-examination. pleas object he because did not for defendant at the conclusion Counsel during imposition the after of restitution respect the evidence with restitution hearing, request did not the restitution and said: the court to him to withdraw his allow Honor, I Your have some comments with pleas. change-of-plеa hearing, At the the restitution, regard to the first. The state listed the items of it was are, today submitted in addi- amounts parties may requesting, noted that “the being in tion to excess estimates propriety” disagree well as to the of the example, I recall given were that categories various and amounts. The cate- —for expense estimate be- that the travel was gories approximated by and amounts 5,000 and five and tween $7500.00 (1) expenses state were: the travel — object object We to—I $7500.00. family to various court victim’s attend expenses being awarded as restitu- ($5,000 $7,000); (2) travel funeral ex- hearings restitution, some of the oth- (approximately tion—as and penses for the victim I $4,500); (3) er restitu- counseling mental health for items which submit $4,000); family (approximately appropriate items for res- victim's tion or are ($1,500). (4) spent and traveler’s checks titution. $17,000. totaled maximum amounts example, there is cost—the For defense pointed The state out that counsel largest expense, lodging is the objected to some the items something That was that the Kane one. they grounds “consequential were do, Ari- chose to to come out to ordered as res- amounts that should not be something was It was not zona. titution.” The trial court found that is is a causal—there caused —there in- knowingly, pleas defendant entered his for A that. proximate-cause not a basis accepted voluntarily; telligently, and hearing transcript of transfer —re- hearing de- pleas; set a transcript of transfer questing a restitution. termine the amount of something is a hearing, that hearing, in- At the state the restitution subject proper number of the troduced into evidence a So, respect I think bills, fare, family’s air victim’s hotel request for an order that Jake that the claimed expense other items. The amount restitution is exces- pay that amount of $5,496.00; funeral/burial sive, rea- ask the Court award counseling expenses for the mental health amounts for those matters sonable $9,475.00; family, and for victim’s rela- there is a direct causal for which family’s expenses incidental attend- should tionship, rather than those that $15,570.79, hearings, various ance at the pro- in a civil ordinarily be established $30,541.79. This included for a total [Emphasis ceeding. added.] service, airfare, limousine state Defendant contends calls, telephone bills at various hotel objection to the trial ment constituted up people: the victim’s times for to five in excess of amounts brother, court’s consideration father, sister, mother, grand- prior to the made $29,- of the estimated amounts awarded mother. The trial court entry guilt. time of Of the amount as restitution. 2Jt3.7^ He mentiоn that court, $15,570.79 disagree. did by the trial awarded amounts excess of the estimates was unknown to defendant and was a through specif- but he did not follow with a relevant and material factor in defen- objection. only objection ic His had to do plead, dant’s decision to then the trial requested restitution items which he apply Phillips court should Lukens and contended “are not items for plea. and vacate the entire restitution.” Crowder, State following
Defendant relies on the
cases:
Crowder,
State v.
Lukens,
Crowder,
Philliрs, and
(1987);
Phillips,
hearings
tested restitution
were not held
(1987);
Lukens,
State v.
and waiver was not an issue. In this
*4
502,
(1986).
principles
opinion
error,
stated in this
to deter-
fundamental
error
Absent
mine
whether
extended rеcord
usually
ap-
shows
considered to be waived on
knowledge
defendant had
peal
objected
of the amount
unless it was
to at trial.
not,
If
Henley,
court must
(1984).
then determine whether such lack of
principle
applies
This
also
knowledge was relevant and material to
error.
constitutional
See
State Ma-
making
If
gallanes, 110 Ariz.
time on fact, hearing had a contested relevant Furthermore, the amount of restitution. in the case The error instant was not fun- (1) object to defendant failed: the trial damental. We hold under the facts in this court’s restitution consideration of and its present that the failure the issue substantially award of excess amounts excess restitution to the trial amounts; estimated knd maximum during sentencing (2) request guilty pleas of his withdrawal hearing and after the court set the amount ground they involuntarily restitution constituted waiver of the upon made based the amount of restitution ap- to raise on this issue Based considered and awarded. on this peal. record, we find that the amount of restitu- posits The state that the amount of tion was not a relevant factor defen- was not a relevant factor decision-making process deciding dant’s appellant’s plead guilty. decision to guilty pleas. to enter agree. Grijalba, State v. In the case of *5 ITEMS APPROPRIATE FOR RESTITUTION supreme our court stated: Assuming may that not The defendant claims that precise told the amount of have been expenses award of restitution for travel for believe, we and hold that family the victim’s to attend various court appellate there are instances when an hearings counseling and for mental health from court can conclude the record that family inappropriate, for the victim’s of restitution not have the amount could categories and that of are these been a relevant factor defendant’s de- proper not of restitution under Ari items cision-making process. In requires such instances zona law. Arizona law plea upheld. will be for impose economic a part loss as of the defendant’s sentenc record, of Based on our examination we died, ing. victim this since the the amount conclude that of restitution immediate members of the victim’s could not have been a relevant factor parties are the whom the decision-making He process. defendant must make A.R.S. first-degree facing felony murder 13-603(C). 13-105.11 A.R.S. defines § together grand with two charge counts of economic loss as follows: years penalty theft with a maximum of 15 any means loss incurred ‘Economic loss’ plea agreement provid- on The each count. by person result of the commission as a ed the sentence for the murder would Economic loss includes of an offense. imprisonment possibility be life without the interest, earnings and loss- lost lost other parole years. agreement of The also for 25 not have been incurred es which would provided thаt the sentences on the two for Economic loss does the offense. grand counts of theft would run concur- by the loss incurred convicted include rently each other and the sen- person, damages pain suffering, for apparent murder. It is tence for the consequential or dam- punitive plea agreement, a result of this ages. [Emphasis added.] charges sentences on the theft would be Pearce, completed prior appellant’s eligibility In the of case parole charge. murder (App.1988), pled Without Pearce punishment resulting each of from his agreement, guilty on conver- equipment charges pieces could set to of three have been sion three Leasing Company. The trial consecutively. Woudenberg run this Defendant avoided for the by entering guilty. court ordered restitution possibility that Pearce con- agree- equipment The concessions made value verted, pay Pearce restitu- but it ordered very significant. had been ment were He the amount Woud- tion for of monies that economic loss caused defendant’s crime. enberg would have earned if the lease had erred in awarding The trial court restitu- interpret- out. been carried The trial court expenses. tion for travel loss entire ed economic to include the im Defendant asserts that it was of the lease contract deficiencies. proper trial court to for the award restitu appellate court stated: expended tion for the amounts for mental Woudenberg do not We believe enti- mother, counseling health for the victim’s system justice tled use the criminal father, sister, and posits brother. He its enforce lease contract. statute Our pain this suf is akin to specifically excludes from ec- the victim’s fering precluded by specif and is therefore any loss for purposes onomic statutory ic in the mention definition ‘consequential damages.’ Pearce’s theft disagree. economic loss. Pain damaging equipment here re- suffering does constitute an economic value, in loss equipment sulted or its alleviаting loss. The costs the results resulting but the lease and breach of the pain suffering loss. are an economic are profits lost counseling Medical resulting from Pearce’s conversion. directly attributable victim’s death. profits Such lost do from the not ‘flow’ correctly awarded restitu pled guilty. acts to which Pearce counseling tion for health expenses. mental of the difficulty Part case from a distinguish result failure to be-
tween restitution in a
case and
AND
criminal
AGGRAVATING
MITIGATING
*6
civil
be recovered
CIRCUMSTANCES
separate
proсeeding.
a
civil
Restitution
argues
The defendant
that the trial court
and
independent
civil
are
under
aggravated
improperly
the
sentences
law in
Arizona
that a restitution award
the
because
did
judge
theft counts
the trial
ability
effect on
has no
the victim’s
to
mitigat-
separate
aggravating
not
the
damages in
recover
a civil action. A.R.S.
ing
first-degree
for the
mur-
circumstances
provides
13-807
that
order
res-
§
‘[a]n
counts,
der
the
count from
theft
most
person
titution
favor of
does
a
not
aggravating
only
the
apply
circumstances
preclude
person
bringing
count,
aggravating
to the
and the
murder
separate
proving
civil action and
in that
to
are
applicable
factors
the theft counts
damages in
action
excess of the amount
elements of the offense. The
court
trial
of the restitution order.’
specifically found that the theft offenses
Pearce,
288-89,
156 Ariz. at
P.2d at
751
taking
property
involved the
The
604-05.
record
civil
shows that a
suit
and,
expectation
pecuniary gain,
there-
by
was filed
family.
victim’s
fore,
the vаlue
property
considered
Pearce,
profits
As stated
“do
lost
aggravat-
taken. The court also found as
pled
flow” from
acts to which Pearce
ing
in-
circumstances
defendant
guilty
were
therefore
flicted
on his victim
death
use
damages. In this
the loss claimed
deadly weapon, the crime caused emotional
“do not
from the
flow”
family,
harm to
and financial
the victim’s
pled guilty.
which the
acts to
defendant
conduct,
there
a need to deter future
was
loss,
To
an
the loss
constitute
economic
danger
society.
was a
and the defendant
a direct
must be
result of the defendant’s
mitigating factor
The
the trial court
crime. Travel
an indirect
age.
found
the defendant’s
loss.
the victim’s
was not
Since
light
view the record in a
hearings,
We
required
any
to attend
this
most
trial court’s decision.
directly
defen-
favorable
expense is
related to the
Rowe,
283,
crime,
225
State v.
569 P.2d
“consequential”
dant’s
but is a
dam-
(1977).
practice
trial
sympathize
It is better
for the
age.
with the victim’s fam-
mitigat
hearings,
aggravating
ily’s
to attend these
court to disсuss
desire
ing
separate-
find
was a matter of
not an
for each count
choice and
circumstances
stricken,
564,
Gillies,
thereby reducing the
hereby
691 P.2d
ly.
$13,672.95.
denied,
1059,
470 U.S.
The
cert.
award of restitution
(1985).
1775,
The trial
substantially
proper items for dramatic restitution such equipment. version of leased Division Two appear losses as here. the con- To hold to court, noting specif- that our of this statute trary upon liability encroach will civil and ically consequential restitution for excludes negative protections provided by civil stated, damages, damag- “Pearce’s theft or suits. ing here in loss equipment resulted value, resulting equipment court is resti- or its but the The trial to order - profits the full a victim. lease and lost tution for economicloss of breach court, ordering resulting 13-603. The from A.R.S. § do profits must consider all caused Pearce’s conversion. Such lost losses by the criminal offense. 13-804. not acts to which Pearce A.R.S. ‘flow’ § 13-105(11) pled The court guilty.” A.R.S. defines economic loss reitеrated that purpose displace restitution was not to as: in a civil be recovered
separate civil action. dispositive is and its believe Pearce
logic compelling. Whereas reimbursement properly motivated
of victims crime actively pursued, it must be
and should be
strictly accept anything To less defined. process requirements due
would violate the proceeding. civil by the trial court here included
awarded
travel, expenses. lodging mental health arguably proper- expenditures, while
These by compensable in the civil action filed
ly survivors, “directly did and im-
Eric’s
mediately” flow from the act defendant. consequence
They as a of defen- flowed such, I would disallow
dant’s crime. As travel, health ex- lodging and mental subjeсts for resti-
penses inappropriate
tution. PAVING, INC., an Arizona
BEST Plaintiff/Appellant, corporation, II, R. P.C. Norman Norman Freeman II, Tucson, plaintiff/appel- R. Freeman COMPANY, DECKER CONSTRUCTION lant. INC., corporation; Aetna an Arizona Moeller, Bury, Humphrey & O’Meara Surety Company, Casualty corpo Tucson, III, for defen- Humphrey Marshall ration; Ltd., Sportsclub, Lakeside dants/appellees. partnership, Defen Arizona limited Appellees. dants/ OPINION PAVING, INC., an Arizona
BEST Plaintiff/Appellant, corporation, LACAGNINA, Judge. Inc., on a Paving, a subcontractor Best CO., INC.; Aetna
TASHMAN BUILDING contract, summa- appeals from commercial Casualty Surety Company, construction judgment favor two ry corporation, Defendants/Appellees. *9 against their sure- companies on its claims 89-0209, Nos. 2 CA-CV argues that the nonpayment. Best ty for 90-0007. CA-CV 32-1152(E) allow provisions of A.R.S. § Arizona, Appeals Court against the license to make claim Best B. Department Division companies construction issued bonds affirm. in this case. We May for Review Petition and Cross-Petition judgment, the purposes summary For 23, 1990. Denied Oct. Best con- undisputed. facts following companies for labor with both
tracted jobs com- paving which were materials on paid. Best was never for which pleted, and