The juvenile maintains that (1) the juvenile court erred by failing to ascertain the juvenile's ability to pay $13,687 and (2) the juvenile court improperly included as part of restitution, $12,000 for unearned commissions by the victim. The juvenile relies on this court's decision in State v. Hawkins, 134 Ariz. 403, 656 P.2d 1264 (App. 1982), to support his first contention that the juvenile court failed to consider the restitution criteria provided for in A.R.S. § 8-241(C). That statute reads in part as follows:
The juvenile appealed, alleging that the juvenile court failed to ascertain his ability to pay that amount. See id. Relying on State v. Hawkins, 134 Ariz. 403, 656 P.2d 1264 (App. 1982), we found that "the focus of the juvenile restitution statute pertains to a juvenile's financial ability to make restitution," and held that the restitution order was improper because the juvenile court failed to consider the juvenile's ability to pay restitution as demanded under A.R.S. § 8-241(C). J-96304, 147 Ariz. at 154-55, 708 P.2d at 1345-46.
A.R.S. § 13-603(C). If a person is convicted of an offense, the court shall require the convicted person to make restitution to the victim of the crime . . . in such an amount and manner as the court may order after consideration of the economic loss to the victim and economic circumstances of the convicted person. In State v. Hawkins, 134 Ariz. 403, 656 P.2d 1264 (App. 1982), this court held that under the above quoted statute, the trial judge must consider a defendant's ability to pay whenever restitution is ordered. If the record demonstrates that the amount of restitution is a proper discretionary choice with regard to the convicted person's ability to pay, the amount will be sustained on appeal. Id. at 406, 656 P.2d at 1267.
In Fox, this Court agreed with the Arizona Supreme Court's statement that, "[c]onsideration of the defendant's ability to pay restitution is sound penology." Fox, 176 W. Va. at 681, 347 S.E.2d at 201, quoting State v. Hawkins, 134 Ariz. 403, 405, 656 P.2d 1264, 1266 (1982). The second principal reason that this Court has identified as supporting the principle that restitution should be "tuned" or tailored to the financial ability of an offender is to assure compliance with the constitutional requirements of due process and equal protection of the laws.
First, "[c]onsideration of the defendant's ability to pay restitution is sound penology." State v. Hawkins, 134 Ariz. 403, 405, 656 P.2d 1264, 1266 (1982). The practice of ordering restitution or reparation as a condition of probation is favored in the law because it serves "as an aid both to the criminal in achieving rehabilitation and to his victim in obtaining some measure of redress."
¶11 By his own admission, Andrich stipulated to the precise restitution amounts so he could resolve all the pending charges via a plea agreement, see Rule 17.4(a)(1) (permitting parties to negotiate and reach agreement "on any aspect of a case"), and, having received the full benefit of that agreement, he cannot now challenge its stipulated terms. Cf. State v. Hawkins, 134 Ariz. 403 (App. 1982) (defendant entitled to withdraw plea when sentencing court orders different or larger amount of restitution than he agreed to pay). By entering a guilty plea and stipulating to the precise restitution amounts, Andrich waived "all non-jurisdictional defects and defenses, including claims of ineffective assistance of counsel, except those that relate to the validity of [his] plea."
State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005). An order of restitution is a sentence, State v. Hawkins, 134 Ariz. 403, 406 (App. 1982), and generally, an illegal sentence constitutes fundamental error. State v. Soria, 217 Ariz. 101, 102, ¶ 4 (App. 2007) (citation omitted).
¶5 The restitution imposed was far less than the $500,000 cap set forth in the written plea agreement. Imposition of restitution is part of sentencing, State v. Hawkins, 134 Ariz. 403, 406 (App. 1982), and in the written plea agreement, Ducos "consent[ed] to judicial fact finding by preponderance of the evidence as to any aspect or enhancement of sentence" and that "[i]n making the sentencing determination, the court is not bound by the rules of evidence." Moreover, hearsay evidence is admissible at sentencing, provided Ducos was given an opportunity to refute it and it bears some indicia of reliability.
As previously noted, Urosevic was resentenced. And although a defendant should be given the opportunity to withdraw his guilty plea when a trial court rejects or does not follow a provision of the plea agreement, that did not occur here.See Ariz. R. Crim. P. 17.4(e) (if court rejects plea agreement, "it shall give the defendant an opportunity to withdraw his . . . plea"); State v. Hawkins, 134 Ariz. 403, 405, 656 P.2d 1264, 1266 (App. 1982) (rejection of provision of plea agreement gives rise to mandatory duty to grant defendant opportunity to withdraw plea). Although it is undisputed that the sentence imposed did not comport with the plea agreement, the court did not reject any provision of that agreement.
Even if we accept the two plea agreements were part of a "global resolution," they provided for withdrawal only if the superior court rejected the plea agreements. See Ariz. R. Crim. P. 17.4(e); State v. Hawkins, 134 Ariz. 403, 405, 656 P.2d 1264, 1266 (App. 1982) ("Where a plea agreement or a provision of the agreement is rejected by the trial court, it is obliged to give the defendant an opportunity to withdraw the plea.")