Opinion
2 CA-CR 2023-0151
08-23-2024
THE STATE OF ARIZONA, Appellee, v. JORDAN MICHAEL HANSON, Appellant.
Kristin K. Mayes, Arizona Attorney General By Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals, Phoenix Counsel for Appellee Law Office of Treasure VanDreumel PLC, Phoenix By Treasure VanDreumel and Beus Gilbert McGroder PLLC, Phoenix By Lori L. Voepel Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. CR2015005451001 The Honorable Pamela Gates, Judge
Kristin K. Mayes, Arizona Attorney General By Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals, Phoenix Counsel for Appellee
Law Office of Treasure VanDreumel PLC, Phoenix By Treasure VanDreumel and Beus Gilbert McGroder PLLC, Phoenix By Lori L. Voepel Counsel for Appellant
Judge Vásquez authored the decision of the Court, in which Presiding Judge O'Neil and Judge Kelly concurred.
MEMORANDUM DECISION
VASQUEZ, JUDGE
¶1 In this appeal, Jordan Hanson challenges the trial court's criminal restitution order awarding the deceased victim's mother restitution for her own lost wages, reimbursement for her insurance premiums, and restitution for the decedent-victim's future lost wages. He also argues the mandatory imposition of interest under A.R.S. § 13-805(E) is unconstitutional, and alternatively, that the court abused its discretion by entering the criminal restitution order while he remained indigent and incarcerated. For the following reasons, we affirm in part and vacate in part.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding the trial court's restitution order. State v. Lapan, 249 Ariz. 540, ¶ 30 (App. 2020). In 2015, C.D. and several others went to Hanson's house after a party. Soon thereafter, Hanson retrieved a loaded handgun and told C.D. to leave. C.D. refused, and a physical altercation ensued, culminating in Hanson shooting and killing C.D. After a jury trial in 2017, Hanson was convicted of second-degree murder, and the court sentenced him to twelve years in prison. This court affirmed Hanson's conviction and sentence on appeal. State v. Hanson, No. 1 CA-CR 17-0350 (Ariz. App. Nov. 8, 2018) (mem. decision).
¶3 At Hanson's sentencing, the trial court retained jurisdiction over restitution, and on March 21, 2018, C.D.'s mother, B.F., filed her motion for a criminal restitution order under § 13-805(B). Hanson opposed her request, disputing as a matter of law B.F.'s claim for her own lost wages and insurance premiums and her claim for C.D.'s future lost wages. After a hearing, the court preliminarily found that B.F.'s lost wages and insurance premiums "may constitute economic loss that would not have occurred but for the crime and are directly caused by the criminal conduct." In May 2019, the court entered its criminal restitution order awarding B.F. $562,980.45, which included, in part, $143,636 for B.F.'s lost wages, $2,044.56 for her insurance premiums, and $411,402 for C.D.'s lost wages "paid to [B.F.] on behalf of [C.D.'s] estate," plus interest pursuant to A.R.S. § 13-805(E). This appeal followed. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Hanson was granted a delayed appeal to challenge the order pursuant to Rule 32.1(f), Ariz. R. Crim. P.
Discussion
I. Restitution Award
¶4 Hanson argues the trial court erred by entering an illegal restitution award for B.F.'s lost wages and insurance premiums, as well as for C.D.'s future lost wages. Determining the scope of a restitution award is a question of law we review de novo. See Town of Gilbert Prosecutor's Off. v. Downie, 218 Ariz. 466, ¶ 9 (2008).
Hanson is not challenging the restitution amounts on appeal, recognizing that post-conviction proceedings are the proper means for such challenges. See State v. Watton, 164 Ariz. 323, 328 (1990). We therefore offer no opinion on the propriety of the amount awarded.
¶5 The Victims' Bill of Rights guarantees victims the right to "receive prompt restitution from the person . . . convicted of the criminal conduct that caused the victim's loss or injury." Ariz. Const. art. II, § 2.1(A)(8). To implement this right, the legislature enacted several statutes defining the parameters of restitution awards. See Ariz. Const. art. II, § 2.1(D) (authorizing legislature to "enact substantive and procedural laws to define, implement, preserve and protect" enumerated victims' rights). Under A.R.S. § 13-603(C), the trial court must order a defendant, upon conviction, to make restitution to "the person who is the victim of the crime or to the immediate family of the victim if the victim has died, in the full amount of the economic loss as determined by the court." A victim is "a person against whom the criminal offense has been committed" or "if the person is killed or incapacitated, the person's . . . parent." Ariz. Const. art. II, § 2.1(C); A.R.S. § 13-4401(19); Ariz. R. Crim. P. 1.4(v). An economic loss is "any loss incurred by a person as a result of the commission of an offense." A.R.S. § 13-105(16). Lost interest, lost earnings, and "other losses that would not have been incurred but for the offense" are specifically included as economic losses under the statute. Id. "Economic loss does not include losses incurred by the convicted person, damages for pain and suffering, punitive damages or consequential damages." Id. In ordering restitution, the court must "consider all losses caused by the criminal offense." A.R.S. § 13-804(B).
¶6 In State v. Wilkinson, 202 Ariz. 27, ¶ 7 (2002), our supreme court listed the standards for determining "those losses for which restitution should be ordered": (1) the loss must be economic, (2) the loss must be one that the victim would not have incurred but for the criminal conduct, and (3) the criminal conduct must directly cause the economic loss. If the loss does not flow directly from the defendant's criminal conduct, then the loss is considered indirect and consequential and, thus, nonrecoverable. Id. A loss flows directly from a defendant's criminal activity if it results "without the intervention of additional causative factors." Id. This modified but-for standard requires proof "that a particular loss would not have occurred but for the conduct underlying the offense of conviction, [and] that the causal nexus between the conduct and the loss is not too attenuated (either factually or temporally)." State v. Quijada, 246 Ariz. 356, ¶ 42 (App. 2019) (quoting State v. Lewis, 222 Ariz. 321, ¶ 11 (App. 2009)). This causal connection preserves the purpose of restitution-to make the victim whole. Town of Gilbert Prosecutor's Off., 218 Ariz. 466, ¶ 13. Because restitution is not meant to penalize the defendant, restitution is limited to the victim's actual loss. Id.
A. Restitution to Decedent-Victim's Mother
¶7 Hanson contends B.F. was not entitled to restitution for her own economic losses unless they were incurred "as a direct consequence of [her] exercise of victim's rights on [C.D.]'s behalf." His argument hinges on his characterization of B.F. as a third party.
Hanson does not challenge the restitution award to B.F. for her travel and parking expenses to attend court proceedings. See State v. Madrid, 207 Ariz. 296, ¶¶ 10-11 & 1 (App. 2004) (holding that "reasonable expenses associated with [decedent-victim's] children's attendance" at trial can be ordered as restitution). He also acknowledges "[h]ad [B.F.] lost wages due to attending court proceedings, she would've been entitled to recoup that as well." See State v. Lindsley, 191 Ariz. 195, 197-98, 199 (App. 1997) (upholding restitution award for victim's lost wages to attend criminal trial proceedings).
¶8 Relying on State v. Whitney, 151 Ariz. 113, 114 (App. 1985), Hanson argues the "victim of the crime" must be distinguished from third parties in order to preserve the "proper function of restitution in a criminal case." Indeed, third parties as contemplated in Whitney are not entitled to restitution. In that case, the defendant stole a vehicle and caused a car accident about an hour later. Id. at 113. The defendant pled guilty to theft, and at sentencing the trial court ordered him to pay restitution to the victim and to the owner of the other vehicle for the damage to their vehicles. Id. We concluded that the court lacked authority to order restitution to the other driver because he was not a victim of the crime of theft. Id. at 114. We therefore modified the order of restitution by vacating the amount awarded to the other driver. Id. at 114-15. Here, in contrast, B.F. sought restitution for her losses relating to Hanson's second-degree murder conviction in her capacity as a victim under § 13-603(C), not as a third party.
¶9 To be sure, distinguishing victims from third parties is necessary to "prevent[] the restitution statutes from conflicting with the right to a civil jury trial." Wilkinson, 202 Ariz. 27, ¶ 11; see Whitney, 151 Ariz. at 114; see also Ariz. Const. art. II, § 23 ("The right of trial by jury shall remain inviolate."). But in this case, B.F. is not a third party, she is a victim under Arizona law. See Ariz. Const. art. II, § 2.1(C); § 13-4401(19); Ariz. R. Crim. P. 1.4(v); see also Fay v. Fox, 251 Ariz. 537, ¶¶ 1, 3, 26, 29-30 (2021) (defining B.F. as "victim" under Ariz. Const. art. II, § 2.1(C) and, therefore, determining she has right to be heard on merits of post-conviction motion for delayed appeal to contest restitution award).
¶10 Hanson nonetheless suggests that any statutory reference to the decedent-victim's family members merely dictates who is "entitled to collect restitution owed [to] a decedent-victim." He maintains Arizona law does not allow B.F. "to recoup her own lost wages and insurance premiums, as those losses were neither suffered by C.D., nor incurred as a result of [B.F.] assuming his rights, acting on his behalf." Hanson asserts that under Arizona's constitution, restitution is limited to the "actual crime victim," which he interprets as the person against whom the crime was committed. See Ariz. Const. art. II, § 2.1(C) ("'Victim' means a person against whom the criminal offense has been committed .... "); see also § 13-4401(19) (same); Ariz. R. Crim. P. 1.4(v) (same). But the plain language of the Victims' Bill of Rights, along with its implementing legislation and rule, states otherwise when the victim "against whom the criminal offense has been committed" has been killed. Ariz. Const. art. II, § 2.1(C); § 13-4401(19); Ariz. R. Crim. P. 1.4(v); see also State ex rel. Thomas v. Klein, 214 Ariz. 205, ¶ 5 (App. 2007) ("When interpreting the scope of the Victims' Bill of Rights, we are required to follow and apply its plain language."); State v. Hansen, 215 Ariz. 287, ¶ 7 (2007) (we apply plain language of statutes and rules when language is clear and unambiguous). "Victim" means the "parent" of the "person against whom the criminal offense has been committed," if that person is killed. Ariz. Const. art. II, § 2.1(C); § 13-4401(19); Ariz. R. Crim. P. 1.4(v). Hanson killed C.D., and consequently, as C.D.'s parent, B.F. is a victim entitled to "receive prompt restitution" from Hanson. Ariz. Const. art. II, § 2.1(A)(8).
¶11 This interpretation of who is conferred victim status finds support in our prior case law. Our supreme court has discussed the broad nature of the rights afforded to victims under the Arizona Constitution, stating that "[b]y its terms, the Victims' Bill of Rights is an intended baseline, not a ceiling, for the rights of crime victims." Fay, 251 Ariz. 537, ¶¶ 20-21 &20. "One of the purposes of the Victims' Bill of Rights was to ensure that all crime victims are provided with basic rights of respect, protection, participation and healing of their ordeals." State ex rel. Thomas, 214 Ariz. 205, ¶ 7. And our courts have repeatedly refused to narrow the definition of a crime victim. See, e.g., State v. Roscoe, 185 Ariz. 68, 70-73 (1996); State v. Nichols, 224 Ariz. 569, ¶¶ 17, 22 (App. 2010); State ex rel. Thomas, 214 Ariz. 205, ¶¶ 13-15.
¶12 Indeed, in preserving victims' constitutionally guaranteed rights beyond the restitution context, we have concluded that the parents of decedent-victims are victims in their own right. See, e.g., Knapp v. Martone, 170 Ariz. 237, 239 (1992); E.H. v. Slayton, 245 Ariz. 331, ¶ 10 (App. 2018); State ex rel. Smith v. Reeves, 226 Ariz. 419, ¶¶ 20-21 (App. 2011). Moreover, the parents of decedent-victims "are entitled to invoke the rights and protections accorded crime victims on behalf of their child or on their own behalf" when the decedent-victim has died "as a result of criminal conduct by defendant." State ex rel. Smith, 226 Ariz. 419, ¶ 21. Thus, contrary to Hanson's argument, B.F. is not limited to restitution for only the economic losses of C.D. or those she incurred acting on C.D.'s behalf.
As discussed above, Hanson's argument is limited to B.F.'s ability to recover restitution as C.D.'s representative for his losses. He is not arguing that under § 13-804(A), B.F. is "any person" who could have recovered restitution but for the trial court's decision not to impose a fine for reimbursement of public monies and order that "all or any portion of the fine imposed be allocated as restitution."
¶13 Hanson next argues the trial court erred in finding that B.F.'s lost wages and insurance premiums "constitute economic loss that would not have occurred but for the crime and are directly caused by the criminal conduct." See Wilkinson, 202 Ariz. 27, ¶ 7. A court's determination whether the criminal conduct caused the economic loss is a fact-specific inquiry and must be "based on the evidence and reasonable inferences therefrom." Lewis, 222 Ariz. 321, ¶ 16; see also State v. Linares, 241 Ariz. 416, ¶ 10 (App. 2017) ("The key to the analysis is reasonableness, which is determined on a case by case basis."); Quijada, 246 Ariz. 356, ¶ 42 (same).
¶14 Here, B.F. provided health records to support her restitution claim for lost wages resulting from her inability to work for an extended period after her son's death. The records included physician statements confirming that B.F. was unable to work "[d]ue to extreme stress from the loss of her son." On a statement of disability form for her employer, B.F.'s physician noted that as of November 2015, she was "not emotionally able to work" because she was experiencing "extreme emotional distress" "due to [her] son's death." Mental health professionals also opined as late as August 2017 that B.F. was "not able to return to work" due to the "emotional trauma associated with the loss of her son."
¶15 Hanson nonetheless argues these losses are nonrecoverable consequential damages resulting from "the concurrence of some causal event other than [his] criminal conduct"-that is, "her leaving her teaching job." Wilkinson, 202 Ariz. 27, ¶ 7; see § 13-105(16) (economic loss does not include consequential damages). He reasons that his criminal conduct directly caused B.F.'s clinical diagnoses, requiring counseling and medical treatment, but asserts that her lost wages resulted from B.F. "quitting her job" because she was "hindered by her disordered mental state."
¶16 Citing State v. Wideman, 165 Ariz. 364 (App. 1990), Hanson acknowledges that the costs incurred for B.F.'s related medical treatment were compensable as restitution. In that case, we affirmed the restitution award to the victim's family for the amounts expended for mental health counseling. Id. at 369. We determined that although "[p]ain and suffering does not constitute an economic loss," the "costs of alleviating the results of pain and suffering are an economic loss" recoverable through restitution because these expenses were "directly attributable to the victim's death." Id. Hanson appears to suggest Wideman supports his argument that B.F.'s lost wages do not qualify for restitution. He maintains that "holding otherwise" would "effectively eliminat[e] Wilkinson's third step and the legislative limitation on economic losses." We disagree.
¶17 Hanson's argument that B.F. leaving her job is an intervening factor precluding the recovery of her lost wages as restitution is unavailing. Under § 13-105(16), B.F. is entitled to "lost earnings and other losses that would not have been incurred but for the offense" and were directly related to Hanson killing her son. See § 13-603(C) (convicted person must make restitution to victim in "full amount of economic loss") (emphasis added); Wilkinson, 202 Ariz. 27, ¶ 7. Regarding the cases cited by the state in support of its position that B.F.'s lost wages "are direct losses, not consequential," Hanson appears to recognize that having to leave one's job would not be an intervening factor as to C.D. had he not been killed and was unable to work due to Hanson's criminal conduct. See State v. Stutler, 243 Ariz. 128, ¶ 6 (App. 2017) (victim entitled to restitution for "earnings for work she was unable to perform because of [defendant's] conduct"); see also § 13-105(16) ("Economic loss includes . . . lost earnings . . . that would not have been incurred but for the offense."). We find no reasoned basis to reach a different conclusion for B.F. The evidence supports the trial court's finding that B.F.'s lost wages resulted from her inability to work due to "severe emotional injuries . . . secondary to the loss of her son." Therefore, the court did not err by determining B.F.'s lost wages are an economic loss directly resulting from Hanson's criminal conduct or by awarding restitution for her lost wages on that basis.
¶18 We do agree, however, that B.F.'s insurance premiums formerly paid by her employer as a benefit of employment did not "directly flow" from Hanson's criminal conduct. Rather, the employer ceased paying the insurance premiums as a consequence of B.F. no longer being employed. We therefore vacate the portion of the criminal restitution order for B.F.'s "insurance premiums of $2,044.56."
Reimbursement of insurance premiums are the type of damages that may be sought in a civil lawsuit, see State v. Reed, 252 Ariz. 328, ¶ 31 (2022), to the extent their reimbursement does not result in a windfall, see State v. Iniguez, 169 Ariz. 533, 537 (App. 1991); see also Town of Gilbert Prosecutor's Off., 218 Ariz. 466, ¶ 28 (stating that criminal restitution will not always fully compensate victim because losses may not "flow directly from the crime" and echoing concerns about "too broadly combin[ing] civil liability with criminal sentencing" (quoting Wilkinson, 202 Ariz. 30, ¶ 12)).
B. Lost Wages of Decedent-Victim
¶19 Hanson next argues the trial court entered an illegal sentence by awarding restitution for C.D.'s prospective lost earnings because C.D. did not "actually lose the $411,402" and any finding to the contrary was "born of conjecture and speculation." Hanson maintains that economic loss in the context of criminal restitution does not contemplate the recovery of "'future' or 'prospective'" earnings because this determination is "quintessentially civil" and should be left for a "jury to decide." But the plain language of the relevant statutes and caselaw supports the court's conclusion that future lost earnings are compensable by criminal restitution.
¶20 Hanson acknowledges the statutory definition of economic loss includes "lost earnings," but he asserts that the word "loss" for criminal restitution purposes is limited to "the difference between what was had before and after a specified event." § 13-105(16); see loss, Webster's College Dictionary (2nd ed. 1977) (defining "loss" to mean "the act of losing possession of something" or "an amount or number lost"). We disagree. "Loss" is also defined as "the act . . . of being unable to keep or maintain something" or the "failure to gain." Loss, Merriam-Webster, https://merriam-webster.com (last visited July 15, 2024). And the legislature expressly defined "economic loss" as "any loss incurred by a person as a result of the commission of an offense." § 13-105(16) (emphasis added). The term "result" is defined as "to proceed or arise as a consequence, effect, or conclusion" and encompasses present and future amounts. Result, Merriam-Webster, https://merriam-webster.com (last visited July 15, 2024). Moreover, the term "lost earnings," as defined by Black's Law Dictionary, specifically includes "future lost earnings":
lost earnings. Wages, salary, or other income that a person could have earned if he or she had not lost a job, suffered a disabling injury, or died. Lost earnings are typically awarded as damages in personal-injury and wrongfultermination cases. There can be past lost earnings and future lost earnings. Both are subsets of this category, though legal writers sometimes loosely use future earnings as a synonym for lost earnings. Cf. LOST EARNING CAPACITY.Lost Earnings, Black's Law Dictionary (12th ed. 2024) (second emphasis added).
¶21 This conclusion is supported by our reasoning in State v. Howard, 168 Ariz. 458, 459 (App. 1991), where we explained that "the full amount of a victim's economic loss includes not only those losses incurred at the time of sentencing, but also those losses reasonably anticipated to be incurred in the future as a result of the defendant's actions." Hanson points out that Howard included the "caveat that the amounts would be adjusted downward if the victim's medical expenses proved to be less or if the victim was able to return to work sooner than anticipated." Id. at 460. He contends this caveat limits criminal restitution to "discernable lost wages where it can be demonstrated the victim did or would actually suffer such losses." He maintains "the mere possibility of prospective earnings remains an insufficient basis for an award of criminal restitution." Hanson's interpretation of Howard is incorrect.
¶22 Just like the defendant's argument in Howard, Hanson's "proposed construction of the restitution statutes would not allow the trial court to determine the full amount of the victim's loss and would defeat the legislative purpose of 'mak[ing] the victim whole.'" 168 Ariz. at 459 (alteration in Howard, 168 Ariz. 258) (quoting State v. Howard, 163 Ariz. 47, 51 (App. 1989)). Moreover, it would be illogical to conclude that a victim is only entitled to restitution for lost earnings if they survive a deadly assault. See United States v. Cienfuegos, 462 F.3d 1160, 1164 (9th Cir. 2006) (reasoning that "[t]o not award restitution for future lost income would lead to a perverse result where murderers would be liable for markedly less in restitution than criminals who merely assault and injure their victims").
¶23 The plain language of § 13-603(C) requires a defendant to make restitution to the victim "in the full amount of the economic loss." In determining this amount, a trial court must "consider all losses caused by the criminal offense." § 13-804(B). And "if the victim has died," restitution must be made to the "immediate family of the victim." § 13-603(C). Accepting Hanson's interpretation would mean that a defendant convicted of murder would not be required to pay restitution for a loss of future earnings merely because the victim did not survive the attack. Thus, under Arizona law, B.F. is entitled to recover restitution for C.D.'s future lost earnings. This advances the purpose of restitution in making the victim whole. See Howard, 168 Ariz. at 459.
¶24 Hanson nonetheless contends restitution for "wages and benefits which may have accrued throughout the course of C.D.'s hypothetical life-span" is impermissibly speculative. We agree that restitution awards based on speculative amounts are prohibited. See State v. Iniguez, 169 Ariz. 533, 538 (App. 1991). But although an award of restitution must have "a reasonable relationship to the victim's loss, it cannot always be confined to easily measurable damages." Howard, 168 Ariz. 458, 460 (internal citations omitted). And Howard's caveat-that an award for future expenses would have to be "adjusted downward" if the victim is "able to return to work sooner than anticipated"-does not apply in this case. 168 Ariz. at 460.
¶25 The trial court's restitution order for C.D.'s future lost wages was supported by the evidence. A vocational economist calculated C.D.'s "present value [of] loss of earnings, minus personal consumption, throughout the remainder of [his] career." The vocational economist used "standard methodologies" in calculating the amount, which was compiled into a detailed report. Hanson acknowledges these calculations are not speculative when used to support damages for prospective earning capacity in the wrongful-death context. See, e.g., Walsh v. Advanced Cardiac Specialists Chartered, 229 Ariz. 193, ¶ 8 (2012). We see no reason to conclude otherwise in the context of criminal restitution.
¶26 Hanson contends that authorizing restitution for a victim's future lost earnings "blur[s] the distinction between criminal restitution and recovery for ancillary damages protected by the civil jury trial." Town of Gilbert Prosecutor's Off., 218 Ariz. 466, ¶ 14. We acknowledge that "problems arise if we too broadly combine civil liability with criminal sentencing," Wilkinson, 202 Ariz. 27, ¶ 12, but we disagree that including future lost earnings in restitution awards for deceased victims would do so. "While the amount of compensation will vary depending on the crime and resulting harm, the loss for which restitution can be awarded is not without limit." State v. Patel, 251 Ariz. 131, ¶ 18 (2021) (citation omitted). For example, a victim's restitution award or civil recovery should not result in a windfall. See Iniguez, 169 Ariz. at 537-38 (courts should coordinate criminal restitution with civil damage recovery); A.R.S. § 13-807 (providing that restitution order "does not preclude [a victim] from bringing a separate civil action and proving in that action damages in excess of the amount of the restitution order"). Hanson has not established that such restitution would result in a windfall in this case.
¶27 In sum, the trial court did not err by awarding C.D.'s future lost earnings as restitution because they were (1) economic, (2) would not have been incurred but for Hanson's criminal offense, and (3) were directly caused by Hanson's criminal offense. See Patel, 251 Ariz. 131, ¶ 19 ("[R]egarding a conflict between a restitution hearing and the right to a civil trial, we have previously observed that the statutory framework for imposing restitution 'prevents the restitution statutes from conflicting with the right to a civil jury trial.'" (quoting Wilkinson, 202 Ariz. 27, ¶ 11)).
II. Criminal Restitution Order Interest Rate
¶28 Hanson argues the "interest provision of § 13-805(E) is punitive and unconstitutional" and must be severed from the statute. Under this statute, enforcement of a criminal restitution order "includes the collection of interest that accrues at a rate of ten percent a year." § 13-805(E). Generally, our review of constitutional issues is de novo. Coleman v. Johnsen, 235 Ariz. 195, ¶ 6 (2014). But where a party fails to raise an argument in the trial court, our review is limited to fundamental error review. See State v. Henderson, 210 Ariz. 561, ¶ 19 (2005); see also State v. Junkin, 123 Ariz. 288, 290 (App. 1979) ("As a general rule, even in criminal cases, to preserve a constitutional question for review, it must have been properly and reasonably asserted in the lower court.").
¶29 Hanson argues he sufficiently raised his constitutional argument before the trial court. However, the record reflects that Hanson challenged the timing of the court's restitution order, not the constitutionality of § 13-805(E)'s mandatory interest provision. In his response in opposition to B.F.'s motion for criminal restitution, he argued that issuing a criminal restitution order "at this time is merely punitive" because he has no means to "find money to pay restitution" while he is incarcerated. He further argued he "should be given the same opportunity most defendants are given to begin making restitution payments without the requirement that interest begin accruing immediately." And in his motion for reconsideration or clarification of the criminal restitution order, he sought clarification on whether the trial court intended "to issue a criminal restitution order subject to interest during [his] incarceration rather [than] a restitution judgment that would be converted to a criminal restitution order upon his release and begin accruing interest upon his release."
¶30 Hanson stated, "There is no dispute as to the amounts ordered by the Court, simply whether the criminal restitution order is subject to interest during [his] incarceration." Although magic words are not required, State v. Martinez, 172 Ariz. 437, 440 (App. 1992), Hanson did not challenge the statute below on constitutional grounds in a manner that would have allowed the trial court to rule on this issue, see State v. Kinney, 225 Ariz. 550, ¶ 7 (App. 2010). Accordingly, because Hanson did not make this argument below, he has forfeited review for all but fundamental, prejudicial error. See Henderson, 210 Ariz. 561, ¶ 19. And because he does not argue on appeal that the alleged error was fundamental, he has waived appellate review. See State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17 (App. 2008), overruled on other grounds by State v. Vargas, 249 Ariz. 186, ¶ 1 (2020).
III. Entry of Criminal Restitution Order
¶31 Hanson contends that the trial court erred by entering the criminal restitution order without considering his economic circumstances-namely, that he "remained indigent with 10 additional years of incarceration to go." Section 13-805(B) provides that "the court may enter a criminal restitution order" "[a]t the time the defendant is ordered to pay restitution by the court." In deciding the manner in which the restitution is to be paid, A.R.S. § 13-804(E) requires the court to "consider the economic circumstances of the defendant," including "all of the defendant's assets and income, including workers' compensation and social security benefits." We review a criminal restitution order for an abuse of discretion, viewing the evidence in the light most favorable to sustaining the court's order. State v. Reed, 252 Ariz. 328, ¶ 13 (2022). "A trial court abuses its discretion if it misapplies the law or exercises its discretion based on incorrect legal principles." State v. Slover, 220 Ariz. 239, ¶ 4 (App. 2009).
¶32 Hanson argues a trial court abuses its discretion when it enters a criminal restitution order "at the time the defendant is ordered to pay restitution" if that defendant is incarcerated and indigent. However, the 2012 amendment to § 13-805(B) permits a trial court to do just that. See State v. Cota, 234 Ariz. 180, ¶ 8 (App. 2014). Hanson nevertheless suggests this creates a "prohibited windfall" and is therefore punitive. But again, we have concluded that restitution is not a penalty, and "this fact is not altered by the mandatory accrual of interest." See id. ¶ 11.
¶33 Hanson next argues the trial court failed to consider his indigency as required by § 13-804(E) when entering the criminal restitution order. In his response, Hanson outlined his inability to pay due to being incarcerated, noting his "only means of income will be the minimal amount he receives through DOC employment." He echoed these financial concerns in his motion for reconsideration or clarification, stating that "he has no reasonable means to pay the restitution while incarcerated." He further stated that "there are no reasonable actions" he can take to pay the debt because he is "subject to the jobs and pay that the Department of Corrections assigns him," and therefore it is "a punitive measure" against him. The record does not support his argument that the court failed to consider his circumstances. When entering the order, the court expressly stated it "considered the evidence presented," which included Hanson's response in opposition to the criminal restitution order and his motion for reconsideration or clarification of the criminal restitution order. The court did not abuse its discretion by entering the criminal restitution order at the time it ordered restitution.
Disposition
¶34 We vacate the portion of the criminal restitution order awarding B.F. her insurance premiums but otherwise affirm it.