Opinion
No. 2 CA-JV 2017-0040
07-25-2017
IN RE G.M.
COUNSEL Barbara LaWall, Pima County Attorney By Bunkye Chi, Deputy County Attorney, Tucson Counsel for State Joel Feinman, Pima County Public Defender By Susan C. L. Kelly, Assistant Public Defender, Tucson Counsel for Minor
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f); Ariz. R. P. Juv. Ct. 103(G). Appeal from the Superior Court in Pima County
No. JV20160526
The Honorable Jennifer P. Langford, Judge Pro Tempore
AFFIRMED
COUNSEL Barbara LaWall, Pima County Attorney
By Bunkye Chi, Deputy County Attorney, Tucson
Counsel for State Joel Feinman, Pima County Public Defender
By Susan C. L. Kelly, Assistant Public Defender, Tucson
Counsel for Minor
MEMORANDUM DECISION
Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Vásquez and Judge Kelly concurred. ECKERSTROM, Chief Judge:
The Hon. Virginia C. Kelly, a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and our supreme court. --------
¶1 G.M. appeals from his delinquency adjudication for criminal damage, arguing the juvenile court should have limited the amount of restitution he was ordered to pay to the amount set forth in the statute defining the delinquency allegation to which he had admitted. We conclude that although the court erred in failing to advise G.M. at the time of his plea of the amount of restitution he would be required to pay, G.M. has not established the amount was material to his decision to enter a guilty plea. We therefore affirm.
¶2 After admitting to an allegation of criminal damage in a delinquency petition, G.M. was adjudicated delinquent in October 2016. The parties do not contest that a "no restitution claim" was filed before the disposition, and at the trial review hearing during which G.M. admitted guilt, the state indicated it was uncertain about the amount of restitution. The juvenile court minimally addressed restitution with G.M., but G.M. agreed only that the damage was over $250. At a disposition hearing in November, the court placed G.M. on a twelve-month term of probation and set a restitution hearing for December 2016. The hearing was continued twice, and the court ultimately entered a restitution order in the amount of $1,441.69 in February 2017. This appeal followed.
¶3 On appeal, G.M. solely challenges the restitution order, arguing, as he did below, that the juvenile court "erred in ordering [him] to pay more than the statutory limit of damages for a class one misdemeanor." "We review a juvenile court's restitution determination for an abuse of discretion." In re William L., 211 Ariz. 236, ¶ 10, 119 P.3d 1039, 1042 (App. 2005).
¶4 G.M. contends the juvenile court should have limited the amount of restitution to the amount of criminal damage underlying his conviction—$250 to $1,000. Indeed, as G.M. correctly contends, our supreme court has determined that when a defendant "pleads to a crime which has statutorily prescribed monetary parameters, defendant would necessarily have reason to expect the amount of restitution to be within those parameters." State v. Crowder, 155 Ariz. 477, 480, 747 P.2d 1176, 1179 (1987). Thus, "[w]hen a court takes a guilty plea, it must inform defendant of the precise amount of his restitution liability or of the approximate monetary range in which it falls." State v. Hernandez, 163 Ariz. 578, 580, 789 P.2d 1079, 1081 (App. 1990); see also State v. Phillips, 152 Ariz. 533, 535, 733 P.2d 1116, 1118 (1987) ("We do not believe that a defendant can 'thoroughly understand' the consequences of his agreement to make restitution if he is unaware of the restitutionary amount that can be imposed."); In re Maricopa Cty. Juv. Action No. JV-110720, 156 Ariz. 430, 432, 752 P.2d 519, 521 (App. 1988) ("[A] juvenile, like an adult, must be reasonably aware of his restitution obligation in order to knowingly agree to pay restitution."), citing In re Pinal Cty. Juv. Action No. J-985, 155 Ariz. 249, 745 P.2d 996 (App. 1987). If the court fails to advise the defendant properly, and the amount of restitution is "relevant to the decision to enter a plea," the resulting plea is not a knowing, voluntary, or intelligent one. Crowder, 155 Ariz. at 480, 747 P.2d at 1179; State v. Fancher, 169 Ariz. 266, 267, 818 P.2d 251, 252 (App. 1993); Maricopa Cty. Juv. Action No. JV-110720, 156 Ariz. at 432, 752 P.2d at 521; Pinal Cty. Juv. Action No. J-985, 155 Ariz. at 251, 745 P.2d at 998.
¶5 The state contends, however, that the above rules apply only when the defendant has entered into a plea agreement with the state. Although the court in Fancher stated that these rules "appl[y] only to plea agreement cases," that statement was made in the context of a challenge to a restitution order when the defendant had not admitted guilt, but merely waived his jury trial rights in favor of a bench trial. 169 Ariz. at 266-67, 818 P.2d at 251-52. And the authority on which the court relied, and from which it quoted—State v. Lukens—explained "a defendant cannot be required to pay restitution in an amount exceeding statutorily-prescribed monetary parameters of the crime to which he pleads guilty unless he voluntarily and intelligently agrees to pay a higher amount." Fancher, 169 Ariz. at 267, 818 P.2d at 252, quoting State v. Lukens, 151 Ariz. 502, 505, 729 P.2d 306, 309 (1986). Thus, it is clear that the validity of a guilty plea is at issue, not the means by which that plea is entered. See Crowder, 155 Ariz. at 480, 747 P.2d at 1179 (emphasis added) (noting Lukens and Phillips not "confine[d] . . . to their facts," and "[o]ne can say with relative equanimity that the amount of restitution in Lukens and Phillips was a relevant circumstance to the decision of the respective defendants to waive jury trial and enter a plea").
¶6 As detailed above, G.M.'s guilty plea, was entered without an understanding of his restitution liability. He has expressly stated, however, that he does not wish to withdraw his plea. He argues instead that this court should order specific performance and restrict the amount of restitution to $1,000. Even were we to conclude that specific performance of a plea agreement were a possible remedy in this context, however, there is no such agreement at issue in this matter. G.M. pled guilty to the charge without an agreement, and thus the voluntariness of his plea is the only issue. Having made clear he does not wish to withdraw the plea, and that the exact amount of restitution therefore was not material to the plea, we conclude withdrawal of the plea is inappropriate. See id. at 480, 482, 747 P.2d at 1179, 1181.
¶7 For these reasons, we affirm the juvenile court's ruling.