Opinion
No. 1 CA-JV 15-0259
12-03-2015
IN RE TYREK W.
COUNSEL Coconino County Public Defender's Office, Flagstaff By Kara Sagi, Sandra L. J. Diehl Counsel for Appellant Coconino County Attorney's Office, Flagstaff By Nicholas B. Buzan Counsel for Appellee
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Coconino County
S0300JV201500006
The Honorable Margaret McCullough, Judge
AFFIRMED
COUNSEL Coconino County Public Defender's Office, Flagstaff
By Kara Sagi, Sandra L. J. Diehl
Counsel for Appellant Coconino County Attorney's Office, Flagstaff
By Nicholas B. Buzan
Counsel for Appellee
MEMORANDUM DECISION
Judge John C. Gemmill delivered the decision of the Court, in which Presiding Judge Diane M. Johnsen and Judge Kent E. Cattani joined. GEMMILL, Judge:
¶1 Juvenile Tyrek W. ("Tyrek") appeals the entry and amount of a restitution award ordered by the Coconino County juvenile court. For the reasons that follow, we affirm.
BACKGROUND
¶2 In April 2015, Tyrek was adjudicated delinquent after entering a plea agreement admitting to misdemeanor theft of a cell phone. After a restitution hearing, the juvenile court ordered Tyrek, age 11, to pay restitution to the victim of the theft in the amount of $483.54. To facilitate payment of the restitution award, the court also placed Tyrek on probation until he reaches eighteen years of age.
¶3 Tyrek timely appealed the restitution order and the order of probation, arguing the juvenile court abused its discretion by awarding excessive restitution. This court has jurisdiction under Arizona Revised Statutes ("A.R.S.") sections 8-235 and 12-2101(A).
Tyrek suggests that the court's order of probation and restitution was altogether in error, arguing that it is "excessive and penal in nature." He does not develop this argument, however, nor does he cite case law to support it. Accordingly, we do not address it. See, e.g., State v. Bolton, 182 Ariz. 290, 298 (1995).
DISCUSSION
¶4 When a juvenile is adjudicated delinquent, the court "shall order the juvenile to make full or partial restitution to the victim" of the offense. A.R.S. § 8-344(A); see also A.R.S. § 13-804. Tyrek does not develop the argument that restitution was an inappropriate remedy in this case. Rather, he argues the juvenile court erroneously calculated restitution and the court failed to address the relevant statutory considerations when it ordered restitution.
Because the statutory schemes are similar, we may look to our criminal restitution statutes and cases for guidance when reviewing a restitution order from juvenile court. See In re Erika V., 194 Ariz. 399, 400, ¶ 4 (App. 1999). --------
¶5 "We review a juvenile court's restitution order for an abuse of discretion" and consider the evidence in the light most favorable to upholding the order. In re Andrew C., 215 Ariz. 366, 367, ¶ 6 (App. 2007). We will uphold the amount of restitution ordered if it bears a "reasonable relationship" to the victim's loss. In re Ryan A., 202 Ariz. 19, 24, ¶ 20 (App. 2002).
I. Calculation of Restitution Award
¶6 First, Tyrek argues the juvenile court incorrectly calculated the appropriate amount of restitution in this case. He contends the juvenile court's restitution award exceeds the fair market value of the stolen phone, and accordingly, affords a windfall for the victim.
¶7 The purpose of restitution is to "make the victim whole" by restoring the economic status quo that existed before the offense was committed. See id. When calculating a restitution award, the juvenile court has broad discretion to determine the amount necessary to make a victim whole. In re William L., 211 Ariz. 236, 239, ¶ 12 (App. 2005); see also State v. Ellis, 172 Ariz. 549, 551 (App. 1992) ("Fair market value will not always be the appropriate standard. A court has wide discretion in setting restitution based on the facts of each case."). The court may not, however, make a victim "more than whole" by awarding excessive restitution. In re William L., 211 Ariz. at 239, ¶ 12.
¶8 At the restitution hearing, the court heard testimony that the phone stolen was a Samsung Galaxy S5 smartphone belonging to Tyrek's middle school teacher. The teacher purchased the phone in August 2014, and it was stolen in October 2014. A protective phone case was also stolen at the time of the offense. Neither the phone nor the case was ever returned to the victim.
¶9 The court heard conflicting testimony and evidence regarding the fair market value of the phone. The parties presented evidence that the full retail value of the phone at the time it was purchased in August was approximately $250. The victim, however, paid only $100 out-of-pocket because she agreed to sign an eighteen-month contract for cell phone service at the time of the purchase. The protective case was valued at $39.99.
¶10 In October, after the phone was stolen, the retail cost of an identical replacement was $499.99. Tyrek also presented evidence that an identical S5 phone could have been purchased from a third-party seller for as little as $419 and activated through the service provider's "Bring Your Own Phone" program. Ultimately, the victim purchased a refurbished replacement phone from her service provider for $389. She testified, however, that the replacement was a Galaxy Note 2, a downgrade from the phone that was stolen.
¶11 The court considered and rejected several possible methods for calculating the restitution award. First, it considered using the purchase price of the victim's replacement phone as the basis for the award. But because the victim testified that the replacement phone was a different and inferior make and model in comparison to the stolen phone, the court rejected this option. Next, the court considered using the cost of an identical phone purchased from a third party seller and activated through the Bring Your Own Phone program. The court rejected this option, however, because the details of the program were unclear and questions remained over (1) whether a similarly priced replacement would have been available at the time and (2) whether a surcharge applied to activate a phone under the program. The court ultimately determined the most effective way to make the victim whole was to add the retail cost of an exact replacement phone without a new contract at the time of the theft (discounted to account for two months of use and depreciation) and the cost of the protective case. In so doing, the court ordered restitution in the amount of $483.54.
¶12 We find no abuse of discretion in the court's award, notwithstanding the fact that the fair market value of the phone was difficult to ascertain with certainty. The court made a reasoned determination based on the evidence presented at the hearing and acted within its discretion in awarding $483.54 in restitution. See Ellis, 172 Ariz. at 551. Ordering Tyrek to make restitution for the full purchase price of the phone, less presumed depreciation, does not afford the victim a windfall, but accurately reflects the victim's economic loss.
¶13 Similarly, the restitution award does not, as Tyrek argues, inappropriately reflect consequential damages in the form of the victim's phone service contract. See State v. Wilkinson, 202 Ariz. 27, 29-30, ¶¶ 10-11 (2002) (explaining that restitution damages must flow directly from criminal conduct and may not include "indirect damages" stemming from a "second causal event"). Rather, the restitution award reflects the court's informed estimate of the stolen property's value at the time of the theft — an economic loss the victim "would not have incurred but for the [juvenile's] criminal offense." See id. at 29, ¶ 17. The award was not error.
II. Consideration of the Juvenile's Age and Ability to Pay
¶14 We next address the argument that the juvenile court erred because it failed to consider the relevant statutory factors when it ordered the restitution amount. Tyrek contends that because the court failed to consider these factors, the restitution award is contrary to its rehabilitative purpose. See Maricopa Cty. Juv. Action No. JV-500210, 177 Ariz. 3, 5 (App. 1993) (explaining that juvenile dispositions following an adjudication of delinquency are intended to rehabilitate rather than penalize). Because the court considered the relevant factors, we find no abuse of discretion.
¶15 After a juvenile is adjudicated delinquent, the court must consider "the nature of the offense and the age, physical and mental condition and earning capacity of the juvenile" when ordering restitution. A.R.S. § 8-344(A). During the pre-adjudication conference and the restitution hearing, the court heard testimony about the nature of the theft, including the type and value of the item stolen, from whom it was stolen, and whether it was returned. During the disposition hearing, the court stated the following:
THE COURT: I don't know if Tyrek is capable of earning any money right now. I know he's doing chores at home.On the order of probation, the court wrote "when age appropriate" as an addition to the orders requiring employment for the purpose of paying restitution. In addition, the court engaged in dialogue with Tyrek regarding his earning capacity:
THE COURT: Okay. But, right now, you need to pay 60 percent of your earnings or income. And that needs to be paid monthly. So if you earn money from your mom for chores, if you earn a dollar, you have to give 60 cents towards your restitution. If you earn $10, how much do you have to give?
[THE JUVENILE]: Six.
THE COURT: Six. You're right. $6. . . . So people say, I don't get to keep much. It's like, yes, you do get to keep 40 percent . . . And every time you pay your restitution, I suspect it will be bittersweet. . . . I hope you're proud of yourself for paying off your restitution, but I hope you're a little bit bummed that
you have to pay restitution, because there's all this other stuff you'd rather spend it on.
¶16 Although the court did not specifically read into the record all three of the § 8-344(A) factors, it heard evidence about each of the factors at various points in the adjudication. We presume that judges know the law and correctly apply it when making their decisions. See State v. Trostle, 191 Ariz. 4, 22 (1997). Accordingly, we conclude the court properly considered the relevant statutory factors in determining the amount of restitution imposed. The award serves the rehabilitative purpose of Arizona's juvenile delinquency statutes and demonstrates that actions harming others have consequences. The juvenile court did not abuse its discretion.
CONLCUSION
¶17 For these reasons, we affirm the juvenile court's award.