TOWN OF GILBERT PROSECUTOR‘S OFFICE, Petitioner, v. The Honorable Margaret H. DOWNIE, Judge of the Superior Court of the State of Arizona, in and for the COUNTY OF MARICOPA, Respondent Judge, Mitchell Michael Matykiewicz, Real Party in Interest.
No. CV-07-0300-PR
Supreme Court of Arizona, En Banc.
Aug. 4, 2008.
189 P.3d 393
BERCH, Vice Chief Justice.
Vice Chief Justice, MICHAEL D. RYAN, Justice and PATRICIA A. OROZCO, Judge.*
4. Good behavior in structured environment
¶ 80 Armstrong presented testimony indicating that he has behaved and will behave well in incarceration. We do not regard this as a mitigating circumstance, however, “because inmates are expected to behave well in prison.” Id. at 284 ¶ 162, 183 P.3d at 535.
5. Impact on family
¶ 81 Armstrong‘s mother testified that a death sentence would have a negative impact on Armstrong‘s young children. Although this is a mitigating circumstance, we give it little weight. Andriano, 215 Ariz. at 512 ¶ 77, 161 P.3d at 555.
C. Propriety of death sentence
¶ 82 “In reviewing the propriety of the death sentence, ‘we consider the quality and the strength, not simply the number, of aggravating and mitigating factors.‘” State v. Velazquez, 216 Ariz. 300, 315 ¶ 75, 166 P.3d 91, 106 (2007) (quoting Glassel, 211 Ariz. at 55 ¶ 93, 116 P.3d at 1215).
¶ 83 We give the multiple murders aggravating circumstance “extraordinary weight.” State v. Hampton, 213 Ariz. 167, 185 ¶ 90, 140 P.3d 950, 968 (2006). The mitigating evidence was not sufficiently substantial to warrant leniency.
CONCLUSION
¶ 84 For the foregoing reasons we affirm Armstrong‘s sentences.
CONCURRING: RUTH V. McGREGOR, Chief Justice, REBECCA WHITE BERCH, Vice Chief Justice, MICHAEL D. RYAN, Justice and PATRICIA A. OROZCO, Judge.*
Law Offices of Michael J. Dew By Michael J. Dew, Phoenix, Attorneys for Mitchell Michael Matykiewicz.
Caron L.B. Close, Scottsdale City Prosecutor By Anna C. Johnston, Assistant City Prosecutor, Scottsdale, Attorneys for Amicus Curiae City of Scottsdale.
Aaron J. Carreon-Ainsa, Phoenix City Prosecutor By Rebecca M. Gore, Assistant City Prosecutor, Phoenix, Attorneys for Amicus Curiae City of Phoenix.
OPINION
BERCH, Vice Chief Justice.
¶ 1 We have been asked to decide whether the amount of restitution to be paid by a defendant convicted of contracting without a license may be reduced by any value conferred on the homeowner. We hold that such a reduction is appropriate.
I. FACTS AND PROCEDURAL HISTORY
¶ 2 In January 2005, Richard and Felicita Rada hired Mitchell Matykiewicz to perform remodeling work on their home in Gilbert, Arizona. Over the course of nine months the Radas paid $52,784.22 to Matykiewicz. Matykiewicz claims to have hired licensed subcontractors to do the work, which included installing a pool, barbeque, and fire pit; moving the hot tub from one location to another; removing bushes, tree stumps, and gravel from the back yard; raising and painting the walls all around the house; performing interior remodeling work, such as moving sinks and installing doors; and obtaining the required permits from the Town of Gilbert.
¶ 3 Mr. Rada discovered that Matykiewicz was not properly licensed and filed a complaint with the Registrar of Contractors. The Town of Gilbert charged Matykiewicz with contracting without a license in violation of
¶ 4 On appeal, the superior court vacated the restitution order. Concluding that Wilkinson decided only whether damages for incomplete or faulty work were recoverable as restitution, the superior court remanded
¶ 5 The court of appeals accepted jurisdiction of the Town of Gilbert‘s petition for special action, granted relief, reversed, and, over a dissent, reimposed the $52,784.22 restitution order. Town of Gilbert Prosecutor‘s Office v. Downie, 216 Ariz. 30, 35 ¶ 19, 162 P.3d 669, 674 (App.2007). The majority held that Wilkinson requires disgorgement of “all payments made by victims to an unlicensed contractor under a contract.” Id. at 34 ¶ 14, 162 P.3d at 673. This amount, it concluded, “constitute[s] economic loss subject to restitution.” Id. The majority noted that, while the result seems harsh, such a restitution order would help deter unlicensed contractors. Id. at 34-35 ¶¶ 16-17, 162 P.3d at 673-74. The dissent countered that Wilkinson did not create a per se rule of disgorgement of all proceeds. Instead, Wilkinson held that the trial court could not order as restitution additional sums for consequential damages caused by faulty or incomplete work. Id. at 35 ¶ 20, 162 P.3d at 674 (Hall, J., dissenting). The dissent concluded that the restitution inquiry should be guided by general restitution principles. Id. ¶¶ 20-21, 162 P.3d 669.
¶ 6 We granted Matykiewicz‘s petition for review to decide this issue of statewide importance and to clarify our holding in Wilkinson. We have jurisdiction pursuant to Article 6, Section 5(3) of the Arizona Constitution.
II. DISCUSSION
¶ 7 The Victims’ Bill of Rights gives victims the right to prompt restitution for any loss they incur as a result of a crime.
¶ 8 In ascertaining the victim‘s “economic loss,” the sentencing court must “consider all losses caused by the criminal offense or offenses for which the defendant has been convicted.”
¶ 9 In Wilkinson, we identified a three-part test for determining which losses qualify for restitution under
A. The meaning of “loss”
¶ 10 Because statutory language is the best evidence of the legislature‘s intent, Mejak v. Granville, 212 Ariz. 555, 557 ¶ 8, 136 P.3d 874, 876 (2006), we begin by examining the criminal code to find the meaning of the term “loss.” Arizona‘s criminal code defines “economic loss” as “any” or “all” losses,
¶ 11 “Loss” is commonly defined as the difference between what was had before and after a specified event. E.g., Webster‘s College Dictionary 778 (2d ed.1997) (defining “loss” to mean “the act of losing possession of something” or “an amount or number lost“); see also
¶ 12 Consistent with this understanding, Arizona courts credit victims with the value of returned property when considering restitution. E.g., State v. Ferguson, 165 Ariz. 275, 277-78, 798 P.2d 413, 415-16 (App.1990) (concluding that the trial court erred by failing to take into account evidence that stolen property had been returned). The concept that restitution compensates victims only for loss actually suffered is well established. See, e.g., ABA Standards for Criminal Justice § 18-3.15(c)(i) (3d ed.1994) (limiting restitution “to the greater of the benefit to an offender or actual loss to identified persons or entities“).
¶ 13 Reducing “loss” by any benefits conferred furthers the restitutory purposes of making the victim whole, State v. Guilliams, 208 Ariz. 48, 52 ¶ 12, 90 P.3d 785, 789 (App.2004); In re Kory L., 194 Ariz. 215, 219 ¶ 10, 979 P.2d 543, 547 (App.1999), and rehabilitating the offender, Wilkinson, 202 Ariz. at 30 ¶ 13, 39 P.3d at 1134; State v. Iniguez, 169 Ariz. 533, 536, 821 P.2d 194, 197 (App.1991). Restitution is not meant to penalize the defendant; that function is served by incarceration, fines, or probation. See In re Kory L., 194 Ariz. at 219 ¶ 10, 979 P.2d at 547. Restitution therefore should not compensate victims for more than their actual loss. See generally George Blum, Measure and Elements of Restitution to Which Victim is Entitled Under State Criminal Statute, 15 A.L.R.5th 391, § 2(b) (1993). Courts in other jurisdictions agree. See, e.g., People v. Fortune, 129 Cal.App.4th 790, 28 Cal.Rptr.3d 872, 874-75 (2005); Maurer v. State, 939 So.2d 234, 235 (Fla.Dist.Ct.App.2006); State v. Baxter, 34 Kan.App.2d 364, 118 P.3d 1291, 1293 (2005); State v. Beavers, 300 Mont. 49, 3 P.3d 614, 616 (2000), overruled on other grounds by State v. Herman, 343 Mont. 494, 188 P.3d 978 (2008); People v. Tzitzikalakis, 8 N.Y.3d 217, 832 N.Y.S.2d 120, 864 N.E.2d 44, 46 (2007).
¶ 14 Limiting the victim‘s restitution to the amount necessary to recompense direct losses comports with the language of the restitution statutes, makes practical sense, and preserves the proper place and function of a civil jury to determine a victim‘s actual damages, including damages for pain and suffering, punitive damages, and consequential damages. See
¶ 15 Several jurisdictions permit reductions in restitution for value conferred on the victim. E.g., Beavers, 3 P.3d at 616 (citing
¶ 16 We also find guidance in decisions interpreting the Mandatory Victims Restitution Act of 1996 (“MVRA“),
¶ 17 In United States v. Shepard, for example, the defendant embezzled funds from a hospital patient under the guise of making improvements to the patient‘s home. 269 F.3d 884, 885 (7th Cir.2001). The Seventh Circuit concluded that the starting point for determining restitution was the amount embezzled from the victim. Id. at 887. From this amount, the court subtracted expenditures made on improvements to the victim‘s home. Id. at 887-88. The court concluded that such expenditures did not differ “in principle from taking the money from one of [the victim‘s] bank accounts and depositing it in another.” Id. “[T]he change of the property‘s form—from cash to, say, central air conditioning—does not mean the property has not been ‘returned.‘” Id. at 888.
¶ 18 We agree with the many courts that have concluded that, when determining the proper amount of restitution to be paid to a victim, consideration should be made for value conferred on the victim.3
B. State v. Wilkinson
¶ 19 The Town of Gilbert argues and the court of appeals concluded that our decision in Wilkinson created a per se rule that the entire amount of consideration paid by the victim in an unlicensed contractor case is the proper amount of restitution, regardless of any benefit conferred on the victim. We disagree that Wilkinson created such a rule. Although Wilkinson also involved the restitution due from an unlicensed contractor, it decided an entirely different issue from the one now facing the court.
¶ 20 In Wilkinson, John Porter was convicted of contracting without a license under
¶ 21 This Court concluded that the consideration paid by T.S. and N.L. was the “loss” that flowed directly from Porter‘s illegal con-
¶ 22 Although Wilkinson explored the extent to which “courts can order restitution for victims of an unlicensed contractor who performs incomplete and faulty work,” id. at 28 ¶ 1, 39 P.3d at 1132, and more specifically, whether losses not resulting from criminal conduct are subject to restitution, it never addressed whether losses incurred by victim-homeowners may be reduced by benefits conferred upon them.4 Because it did not address the issue before us, Wilkinson is not dispositive.5
¶ 23 We recognize the legislature‘s strong interest in protecting the public from unlicensed contractors, which is evidenced by the onerous requirements for licensure. The applicant seeking a license must post a bond, obtain experience or train at an accredited institution, and pass a written examination; he may also have to submit fingerprints for a background check.
¶ 24 The State thus already has many tools with which to punish unlicensed contractors. Reading Wilkinson to forge another tool—a rule of total disgorgement regardless of any benefit conferred on the victim—would unnecessarily strain Arizona‘s restitution scheme and may lead to absurd or troubling results.
¶ 25 Consider, for example, the situation in which an unlicensed contractor obtained $5000 from a homeowner to perform construction work. Under the Town‘s reading of Wilkinson, the unlicensed contractor has committed a crime under
¶ 26 We are persuaded that determining a victim‘s “loss” requires consideration of any benefits conferred on the victim. “Most often there will be no reductions, as criminals rarely confer a benefit on their victims.” Tzitzikalakis, 864 N.E.2d at 47. If value is conferred, however, courts must consider such benefits in determining a victim‘s loss.
C. Remand
¶ 27 On remand, the trial court must determine the amount of the Radas’ loss. While determination of a victim‘s loss will depend upon the unique facts of each case, the Radas’ payments to Matykiewicz constitute prima facie evidence of their loss. Wilkinson, 202 Ariz. at 29 ¶ 9, 39 P.3d at 1133. The court must then subtract from this sum any value Matykiewicz conferred on the Radas. This difference will usually be the victim‘s loss. To this figure, the court must apply the remaining parts of Wilkinson‘s three-part test—that is, it may not compensate the Radas for “expenses [they] incurred because [the unlicensed contractor] failed to complete the work he contracted to do or did so in a faulty manner.” Id. ¶ 10, 39 P.3d 1131.
¶ 28 We are aware that criminal restitution may not provide victims the full benefit of their bargain because giving such relief may require consideration of losses that do not flow directly from the crime or involve losses that are not “economic.” But we cautioned in Wilkinson that “[p]otential problems arise if we too broadly combine civil liability with criminal sentencing.” Id. at 30 ¶ 12, 39 P.3d at 1134. The concern remains valid today. We quoted with approval the following description of the problems that may arise in not adhering to the legislative limitation of restitution to “economic loss“:
If reparations as a condition of probation are to include elements beyond mere “special damages” we believe a trial court must use great caution. The sentencing phase of a criminal case is not the ideal forum for the disposition of a [civil] case. Both parties are deprived of a jury; the defendant may be limited in showing causation or developing a defense of contributory negligence or assumption of risk.
Id. (quoting State v. Garner, 115 Ariz. 579, 581, 566 P.2d 1055, 1057 (App.1977)) (alteration in Wilkinson). Today‘s decision does not alter any rights a homeowner may have to recover any indirect or non-economic damages in a subsequent civil action against the unlicensed contractor. See
III. CONCLUSION
¶ 29 For the foregoing reasons, we reverse the opinion of the court of appeals, affirm the judgment of the superior court, and remand the case to the Town of Gilbert Municipal
CONCURRING: MICHAEL D. RYAN and W. SCOTT BALES, Justices.
HURWITZ, Justice, concurring in part and concurring in the result.
¶ 30 The term “economic loss” in
¶ 31 I write briefly, however, to address the subject that divides the majority and the dissent—the effect to be given to State v. Wilkinson, 202 Ariz. 27, 39 P.3d 1131 (2002). The majority correctly notes that Wilkinson is factually distinguishable. The issue in that case was whether the victim could recover restitution above the amount paid to the unlicensed contractor; the issue here is whether the amount paid is the appropriate amount of restitution when the homeowner has received value in return. Thus, the narrow holding in Wilkinson does not control the case before us.
¶ 32 But it is not just the narrow holdings of our prior cases that are entitled to respect under the doctrine of stare decisis. Rather, deference should also properly extend to the Court‘s core rationale, the reasoning essential to the result in the prior case. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 66-67 (1996); Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.2003) (en banc).
¶ 33 As the Chief Justice notes in her dissent, the essential premise of Wilkinson was that the crime of contracting without a license was complete when the victims paid the unlicensed contractor. See Wilkinson, 202 Ariz. at 29 ¶ 9, 39 P.3d at 1133. Wilkinson therefore held that the quality of any work performed under the contract was irrelevant to the issue of criminal restitution. Id. ¶ 10, 39 P.3d 1131. Rather, because the crime was complete before any work was done, Wilkinson reasoned that the appropriate measure of “economic loss” suffered by a victim of unlicensed contracting is the amount paid to the contractor. Id. at 29-30 ¶¶ 8-14, 39 P.3d at 1133-34. Applying this rationale, the victims in this case would receive restitution of their total payments to Matykiewicz, regardless of the value of any completed work.
¶ 34 This, however, does not end the inquiry. Although stare decisis has powerful force, “[i]t is a doctrine of persuasion . . . and not an ironclad rule.” Lowing v. Allstate Ins. Co., 176 Ariz. 101, 107, 859 P.2d 724, 730 (1993). Even in cases involving statutory construction, “we are not prisoners of the past,” particularly when the language of the statute at issue “does not compel the interpretation reached in previous cases.” Id.
¶ 35 Applying the rationale of Wilkinson to the case before us would lead to a conclusion that a victim has “economic loss” under the restitution statutes even if he has none in reality. Whatever its stare decisis effect, I cannot accept Wilkinson‘s rationale when it would produce a result at odds with the language of the restitution statutes.
¶ 36 The policy behind the doctrine of stare decisis is that the public should be able to rely on prior judicial opinions in conducting affairs. Lowing, 176 Ariz. at 107, 859 P.2d at 730. That policy is not implicated in this case. No victim of an unlicensed contractor could have relied on Wilkinson. As then-Judge Ryan once aptly noted, those with knowledge that a contractor with whom they deal is unlicensed are not victims at all, but rather accomplices to the offense not entitled to restitution. State v. Wilkinson, 198 Ariz. 376, 383 ¶ 36, 10 P.3d 634, 641 (App.2000) (Ryan, J., dissenting). And it goes without saying that an unlicensed contractor could not have relied to his detriment on Wilkinson, as that case would impose
¶ 37 In short, although I recognize that Wilkinson‘s rationale would produce a different result if applied to this case, I find its reasoning contrary to the clear directive of the statute that a victim must suffer an actual loss before receiving restitution. In the case of unlicensed contracting, loss is measured by the difference in value between what the victim paid and what he received. I therefore concur in the judgment of the Court.
McGREGOR, Chief Justice, dissenting.
¶ 38 I respectfully dissent. Today‘s decision, without compelling reason or justification, essentially overturns this Court‘s recent decision in State v. Wilkinson, 202 Ariz. 27, 39 P.3d 1131 (2002). Because I cannot join an approach that so casually ignores the basic doctrine of stare decisis, I cannot join today‘s Opinion.
¶ 39 Despite the majority‘s assertions otherwise, this case fits precisely within the rule of law we established in Wilkinson. The action against Matykiewicz, like the action against the defendant in Wilkinson, began when dissatisfied homeowners filed a complaint against a contractor with the Registrar of Contractors. In both instances, the homeowners then learned that the person with whom they had contracted was not licensed. In both cases, the unlicensed contractor was convicted of violating
As a direct result of [the defendant‘s] offer to act as a licensed contractor, [the victims] agreed to pay, and did pay, all or a portion of the amounts due under their agreements with [the defendant]. [The defendant‘s] criminal actions directly caused those losses. . . . Under Arizona‘s statutes, these victims are entitled to recover their payments to [the defendant] as restitution.
202 Ariz. at 29 ¶ 9, 39 P.3d at 1133.
¶ 40 The doctrine of stare decisis thus compels that Matykiewicz be ordered to return all monies paid under the agreement as restitution because his criminal actions caused those losses without the intervention of additional causative factors. See White v. Bateman, 89 Ariz. 110, 114, 358 P.2d 712, 714 (1961) (“The fact that the construction of the statute in question rests on a single case does not render it any less the duty of this court to utilize the doctrine of stare decisis. . . .“).
¶ 41 The rule of law depends to a great extent upon a healthy respect for precedent. “The doctrine of stare decisis, which requires us to give weight to previous decisions addressing the same issue, seeks to promote reliability so that parties can plan activities knowing what the law is.” Galloway v. Vanderpool, 205 Ariz. 252, 256 ¶ 16, 69 P.3d 23, 27 (2003) (McGregor, J.). “Stare decisis reflects a policy judgment that in most matters it is more important that the applicable rule of law be settled than that it be settled right.” State Oil Co. v. Khan, 522 U.S. 3, 20 (1997) (internal quotation omitted). Stare decisis “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Payne v. Tennessee, 501 U.S. 808, 827 (1991).
¶ 42 Because an evenhanded, predictable, and consistent approach to applying the law is essential to the integrity of the judicial process, we do not lightly overrule precedent; we do so only for compelling reasons. “[A]ny departure from the doctrine of stare decisis demands special justification.” Arizona v. Rumsey, 467 U.S. 203, 212 (1984); see also State v. Davis, 206 Ariz. 377, 384 n. 4 ¶ 34, 79 P.3d 64, 71 n. 4 (2003) (Berch, J.) (A relatively recent decision of this Court is not “lightly overrule[d].“). “While the phrase ‘special justification’ defies simple definition, it does require more than that a prior case was wrongly decided.” State v. Hickman, 205 Ariz. 192, 200 ¶ 37, 68 P.3d 418, 426 (2003) (Ryan, J.). Even when this Court has doubted the wisdom of precedent, we have followed previous opinions based upon our respect for the doctrine of stare decisis and our recognition of its importance. See State v. Lara, 171 Ariz. 282, 285, 830 P.2d 803, 806 (1992) (restating the holding of a previous case despite the fact that if the Court had been “writing on a clean slate” it might have taken another approach); Stewart v. Damron, 63 Ariz. 158, 165, 160 P.2d 321, 324 (1945) (doubting the wisdom of prior decisions, but finding the matter foreclosed by stare decisis).
¶ 43 Our failure to apply the doctrine of stare decisis in this case is especially troubling for two reasons. First, resolving the issue presented here and in Wilkinson required us to interpret a statute. “When a court proposes to abandon precedent in a case involving statutory interpretation[,] the burden is highest.” Hickman, 205 Ariz. at 201 ¶ 38, 68 P.3d at 427; see also State v. Fell, 210 Ariz. 554, 561 ¶ 26, 115 P.3d 594, 601 (2005) (Hurwitz, J.) (“[O]ur deference to precedent is strongest when prior decisions construe a statute.” (quoting Galloway, 205 Ariz. at 256 ¶ 16, 69 P.3d at 27)). The reason we give the most deference when construing a statute is because “if we have interpret[ed] the statute other than as the legislature intended, the legislature retains the power to correct us.” Hancock v. Bisnar, 212 Ariz. 344, 349 ¶ 22, 132 P.3d 283, 288 (2006) (Hurwitz, J.) (internal quotation omitted). In the six years since Wilkinson, the legislature has given no indication whatsoever that we incorrectly construed Arizona‘s restitution statutes. Today, the majority simply ignores the legislature‘s apparent approval of the statutory interpretation of Wilkinson and adopts a new interpretation.
¶ 44 Second, the majority neither provides any compelling reason nor points to any change in the law that justifies overturning our prior decision. That approach is inconsistent with our insistence that some strong reason justify a departure from prior decisions. The doctrine of stare decisis “should be adhered to unless the reasons of the prior decisions have ceased to exist or the prior decision was clearly erroneous or manifestly wrong.” White, 89 Ariz. at 113, 358 P.2d at 714; see also Neal v. United States, 516 U.S. 284, 295 (1996) (finding that once a court has determined a statute‘s meaning, the court should adhere to that ruling absent “intervening development of the law” or “compelling evidence bearing on [the legislature‘s] original intent“). The ordinary reasons for failing to adhere to the doctrine of stare decisis are not present in this case. No intervening development in the law pertaining to criminal restitution has occurred since Wilkinson was issued in 2002. Also, the result directed by Wilkinson, that all monies paid under the contract must be returned, is not clearly erroneous. It remains true that forcing a criminal to yield the fruits of his crime to his victim furthers the original conception of restitution. See Wilkinson, 202 Ariz. at 29 ¶ 9, 39 P.3d at 1133. It remains true that the rule of Wilkinson protects the public from unlicensed contractors by rehabilitating offenders and thus preventing them from again contracting without a license. Id. at 30 ¶ 13, 39 P.3d at 1134. Further, the result in Wilkinson prevents the problems that arise when we “too broadly combine civil liability with criminal sentencing.” See id. at 30 ¶ 12, 39 P.3d at 1134 (“The sentencing phase of a criminal case is not the ideal forum for the disposition of a [civil] case.” (quoting Garner, 115 Ariz. at 581, 566 P.2d at 1057)). Today‘s opinion will transform restitution hearings into the equivalent of complex civil trials, held without benefit of a jury.
¶ 45 The doctrine of stare decisis ensures that a court‘s current decisions remain tied to precedent, not simply to respect precedent, but to promote the continuity and predictability so essential to the rule of law. My greatest concern with today‘s decision is that it separates this Court‘s analytical framework from our long adherence to stare decisis. When we ignore precedent without a compelling reason for doing so, we undermine public trust in the integrity of the law. I do not believe this case justifies undermin-
189 P.3d 403
STATE of Arizona, Appellee, v. Phillip Alan BOCHARSKI, Appellant.
No. CR-06-0295-AP.
Supreme Court of Arizona, En Banc.
Aug. 8, 2008.