This post examines a recent opinion from the Court of Appeals of Arizona – Division 2: State v.
Leon, 2016 WL 4525044 (2016). The
court begins the opinion by explaining that
[a]fter a jury trial, Summer Lynn Leon
was convicted of theft
of property or services, computer tampering, and fraudulent scheme and
artifice. The jury expressly found the property that was the subject of the
theft had a value of `$25,000 or more, but less than $100,000.’ The trial court
suspended the imposition of sentence and placed Leon on concurrent probation terms of seven years and ordered her to serve thirty days in jail as a
condition of that probation. After a hearing, the court also ordered
restitution totaling $195,670. On appeal, Leon contends the court violated her
constitutional rights by ordering restitution in excess of the jury's verdict.
State v. Leon, supra.
The Court of Appeals began its analysis of the issue in the
case by explaining that
[w]e view the evidence relating to
restitution in the light most favorable to sustaining the trial court's order. State v. Lewis, 222 Ariz. 321, 214 P.3d
409, 412 (Arizona Court of Appeals 2009). In 2004, Leon was hired as a part-time
collections agent for Desert Sports and Fitness Holdings (DSF). She eventually
was promoted to corporate manager, where she supervised payroll, bookkeeping,
and account collections. In mid-2011, an outside company was contracted to
audit DSF's accounts receivable, which required implementing a new system. Leon
was resistant to assisting in its implementation. And on the morning of the
conversion to the new system, she telephoned the owner to inform him she had
`decided to quit,’ citing child-care issues.
State v. Leon, supra.
The Court of Appeals goes on to explain that,
[a]bout two months after Leon's
departure, DSF received notice from the Department of Economic Security that
Leon had filed seven unemployment claims. DSF's owner was `surprised’ by the
number of claims, but `didn't think much of it’ because Leon had voluntarily
resigned.
However, in July 2012, as a result of
an Internal Revenue Service audit of Leon's federal W–2 forms, it was
discovered that from April 2010 to December 2011, Leon had generated over one
hundred extra paychecks from DSF, which had been deposited into her bank
account. The total taken exceeded $200,000. The matter was reported to the
Tucson Police Department, and Leon was arrested and charged with theft of
property `valued at $25,000 or more,’ computer tampering, and fraudulent scheme
and artifice.
The jury convicted Leon on all counts
and, as noted above, found the property valued between $25,000 and $100,000.
The trial court sentenced her as previously described and scheduled a
restitution hearing. After hearing testimony and taking the matter under
advisement, the court awarded DSF restitution in the amount of $195,670. Leon
appealed the restitution order, and we have jurisdiction pursuant to Arizona
Revised Statutes §§ 12-120.21(A)(1), 13-4031 and 13-4033.
State v. Leon, supra.
The court began its analysis of Leon’s arguments on appeal
by noting that
Leon contends, for the first time on
appeal, that the imposition of restitution in excess of the loss determined by
the jury violated her `state and federal constitutional right to have a
jury determine all factors affecting the minimum or maximum sentence that could
be imposed.’ Specifically, she argues that because the jury found her guilty of
theft under $100,000, the trial court was prohibited from ordering restitution
in excess of that amount pursuant to ` Apprendi
and its progeny.’
We generally review a trial court's
restitution order for an abuse of discretion. Lewis, 222 Ariz. 321 ¶ 5, 214 P.3d at 411. Although Leon challenged
the restitution award below, she failed to raise the specific constitutional
argument she now urges. Consequently, we review for fundamental, prejudicial
error. See id. ¶ 13; see also State v. Henderson, 210 Ariz. 562,
¶ ¶ 19-20, 115 P.3d 601, 607 (2005) (fundamental error review applies
to constitutional claims first raised on appeal). But to the extent our
decision rests on a question of law, our review to determine whether any legal
error occurred is de novo. Id. at 2;
see also Coleman v. Johnsen, 235
Ariz. 195, ¶ 6, 330 P.2d 952, 953 (2014) (applying de novo review to constitutional
issues).
Upon conviction, a defendant is
required to `make restitution to the person who is the victim of the crime . .
. in the full amount of the economic loss as determined by the court.’ Arizona Revised Statutes § 13-603(C); see also Arizona Constitution art. II, § 2.1(A)(8) (victim has right to
`prompt restitution’ from “person . . . convicted of the criminal conduct that
caused the victim's loss”’. An `”[e]conomic loss” [is] any loss incurred by a
person as a result of the commission of an offense ... that would not have been
incurred but for the offense.’ Arizona Revised Statutes § 13-105(16); see
also Arizona Revised Statutes §
13-804(B) (court `shall consider all losses caused by the criminal
offense or offenses for which the defendant has been convicted’). The state
must establish restitution by a preponderance of the evidence, In re Stephanie B., 204 Ariz. 466 ¶ 15,
65 P.3d 114, 118 (Arizona Court of Appeals 2003), and it may only be imposed `on
charges for which a defendant has been found guilty, to which he has admitted,
or for which he has agreed to pay,’ State
v. Garcia, 176 Ariz. 231, 236, 860 P.2d 498, 503 (Arizona Court of Appeals
1993).
State v. Leon, supra.
The Court of Appeals then began its analysis of imposing
restitution in this case, noting that
Leon does not dispute that DSF was
entitled to restitution, but asserts the trial court violated her Sixth Amendment right to a jury trial by ordering restitution in excess of the jury
verdict, in contravention of Apprendi v. New Jersey, supra, and Southern Union Co. v. United States, 132 S.Ct. 2344 (2012). In Apprendi,
the Court held, `[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable doubt.’ 530 U.S. at 490.
Subsequently, Blakely v. Washington,
542 U.S. 296, 303 (2004), clarified that Apprendi
created a bright-line rule prohibiting the trial court from imposing a sentence
beyond the `maximum sentence it may impose solely on the basis of the facts
reflected in the jury verdict or admitted by the defendant.’ More recently, the
Court expanded the Apprendi rule to
fact-finding in the context of criminal fines. See Southern Union Co. v. United States, supra (jury must determine facts
establishing criminal fine).
State v. Leon, supra.
The Court of Appeals noted, though, that
Leon acknowledges that no court has
applied Apprendi to restitution
awards but argues for its expansion, contending Arizona courts have
mischaracterized restitution as a civil remedy, and that it `is actually a
punishment’ requiring `jury determination of the amount . . . owed.’ Cf. Southern Union Co. v. United States, supra (Apprendi and Sixth Amendment right to jury trial only `triggered]
when punishment imposed). In support, Leon discusses the
`harmful consequences’ of restitution and notes that Arizona has adopted the
minority position on this issue, citing twenty-three jurisdictions that have
determined `restitution is punitive.’
State v. Leon, supra.
The court went on to explain that, in
Arizona, the courts have uniformly
concluded that restitution's primary purpose is not penal in nature. See
Town of Gilbert Prosecutor’s Office v. Downie, 218 Ariz. 466, 189 P.3d 393, 396 (2008 (`Restitution is not
meant to penalize the defendant; that function is served by incarceration,
fines, or probation’); State v. Cota,
234 Ariz. 180 ¶ 11, 319 P.3d 242, 246 (2014) (purpose of restitution not to
punish); State v. Zaputil, 220 Ariz.
425, ¶ 11, 207 P.3d 678, 681 (2008)(`restitution is not a penalty or a
disability’); State v. Francher,
169 Ariz. 266, 268, 818 P.2d 251, 253 (Arizona Court of Appeals 1991) (restitution
to victim of crime is not criminal punishment exacted by the state). Instead,
the `primary purposes of restitution’ are `reparation to the victim and rehabilitation
of the offender.’ State v. Wilkinson, 202 Ariz. 27, 39 P.3d 1131, 1134 (2002); cf.
United States v. Behrman, 235 F.3d
1049, 1054 (U.S. Court of Appeals for the 7th Circuit 2000) (direct
victim restitution appropriately substitutes for civil remedy so crime victims
need not file separate civil lawsuits).
State v. Leon, supra.
The opinion goes on to point out that,
[e]ven were we able to depart
from our well-established precedent, see State v. Sang Le, 221 Ariz. 580, ¶ 4, 212 P.3d 918, 919 (App.
2009) (intermediate appellate court must follow law as articulated
by supreme court), Leon has presented nothing that would persuade us to do so. The
trial court's award was duly limited to the economic loss DSF actually incurred
as a result of Leon's theft. See § 13-603(C); see also § 13-105(16). Notably, Leon does
not dispute that finding. And in calculating restitution, the court subtracted
the amount DSF had already recovered from insurance proceeds. Thus, the purpose
and focus of the award was not to punish Leon for the crime she committed, but
instead was clearly designed to make DSF whole. See State v. Gulliams, 208 A4iz. 48 ¶12, 90 P.3d 785, 789 (App.
2004).
State v. Leon, supra.
The Court of Appeals then noted that,
[f]inally, even were we to conclude
restitution should be regarded as punishment, Apprendi still would not control
because, unlike a fine, victim restitution is not subject to a statutory
maximum. Compare § 13-603(C) (defendant must make restitution
to victim `in the full amount of the economic loss), with §
13–801(A) (felony fine shall not exceed $150,000); cf. Southern Union Co. v. United States, supra (applying Apprendi to criminal fine imposed in
excess of statutory maximum). Apprendi and
its progeny require a jury to find any fact that either increases a sentence
beyond the statutory maximum or increases a mandatory minimum sentence. See Apprendi, 530 U.S. at 490 (any
fact increasing sentence beyond statutory maximum must be submitted to jury); Alleyne v. United States, 133 S.Ct.2151, 2155 (2013) (any fact increasing mandatory minimum sentence must be
submitted to jury).
Because there is no `statutory maximum’
or `mandatory minimum’ applying to restitution that can be ordered under §
13-603(C), we conclude the Apprendi
rule is inapplicable. Although Leon asserts other `courts are beginning to
recognize that Apprendi might
apply to restitution in light of Southern
Union” and argues we should extend its application here, she has not
presented us with any authority on which to do so. See State v. Keith, 211 Ariz. 436, 122 P.3d 229, 230 (appellate
court will not anticipate how Supreme Court may rule in the future).
State v. Leon, supra.
It therefore held that
[b]ecause restitution is neither a
penalty nor subject to a statutory maximum, and because the Apprendi rule does not apply here, the
trial court did not err in imposing restitution in excess of the jury verdict. See Fancher, 169 Ariz. at 268, 818 P.2d
at 253 (restitution not limited to value range of specific crime of which
defendant was convicted). Accordingly, the trial court's restitution award is
affirmed.
State v. Leon, supra.
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