Opinion
No. 2 CA-CR 2017-0267-PR
02-23-2018
THE STATE OF ARIZONA, Respondent, v. ANGELO DOMINIC LOPEZ, Petitioner.
COUNSEL Joel Feinman, Pima County Public Defender By Sarah L. Mayhew, Assistant Public Defender, Tucson Counsel for Petitioner
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NOT FOR PUBLICATION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. Crim. P. 31.19(e).
Petition for Review from the Superior Court in Pima County
No. CR20160376001
The Honorable Howard Fell, Judge Pro Tempore
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Joel Feinman, Pima County Public Defender
By Sarah L. Mayhew, Assistant Public Defender, Tucson
Counsel for Petitioner
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Vásquez and Judge Eppich concurred.
ESPINOSA, Judge:
¶1 In this petition for review, Angelo Lopez challenges the trial court's order rejecting his claims in his post-conviction proceeding pursuant to Rule 32, Ariz. R. Crim. P., that the court had erred by ordering him to pay restitution in a post-sentencing order and that the amount unlawfully exceeded the cap set by the plea agreement. We will not disturb the order unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). For the reasons stated below, we grant review but deny relief.
¶2 Pursuant to a plea agreement, Lopez, a prison inmate, was convicted of assaulting a Department of Corrections (DOC) officer, in violation of A.R.S. § 13-1204(A)(10) and promoting prison contraband, in violation of A.R.S. § 13-2505. With respect to restitution, the plea agreement provided in relevant part as follows:
The Defendant agrees to pay restitution . . . [and] waives any and all rights to have the amount of the restitution . . . determined by an evidentiary (restitution) hearing. The victims' restitution claim form shall be accepted as conclusive proof of the victims' economic loss. The State agrees, however, that if the amount of restitution requested by a victim is less than any restitution minimums stated herein, the minimums shall be automatically amended downward to reflect the lesser amount(s) requested by the victim(s). The Defendant agrees that if the restitution amount requested by the victim exceeds the amount listed, the defendant shall pay the higher amount. . . . Pursuant to ARS §31-254, if the defendant receives compensation for work while
incarcerated, a portion of that compensation shall be ordered to pay restitution pursuant to ARS §13-603. Restitution is not to exceed $25,000.
¶3 At the May 2016 change-of-plea hearing, the trial court questioned Lopez, confirming that he understood the agreement and, specifically, that if DOC made a claim for restitution he would be required to pay it. The court asked Lopez if he had "go[ne] over everything with" his attorney, and Lopez responded that he had and that he had read and signed the agreement. Under the section of the presentence report pertaining to restitution appeared the name of the injured DOC officer and "Workman's Compensation" and next to each the "loss claimed," both identified as "TBD," presumably "to be determined," in the space provided for the dollar amount.
¶4 On June 9, 2016, the trial court sentenced Lopez to concurrent, presumptive prison terms of 1.5 years on each count, to be served consecutively to the term he was already serving. Based on the transcript, it appears restitution was not mentioned. The sentencing minute entry, however, states the following: "The Court shall retain jurisdiction of the case for purposes of modifying the manner in which court-ordered payments are made until paid in full or until the defendant's sentence expires, such payments to include, but not be limited to . . . [a] restitution order . . . ." The minute entry reflects that a copy was distributed to Lopez's counsel. On June 20, 2016, the state filed a Motion for Restitution, dated June 17, requesting that the court order Lopez to pay $32,200.25 to the Arizona Department of Administration Risk Management based on attached documentation that the state claimed "was not available at the time of sentencing." The certificate of service states the state "mailed/delivered" a copy of the motion to Lopez's attorney on June 17.
¶5 On July 7, the trial court entered an order requiring Lopez to pay $32,200.05 in restitution, signing a form of order that the state had submitted. At the bottom of that order was an incomplete mailing certificate, which provided, "Conformed copy of the foregoing mailed/delivered this ___ day of June, 2016," with no recipients listed. On November 21, 2016, the court entered an order in which it stated, "[t]he Court having signed an Order for restitution on July 7, 2016," Lopez was required to pay restitution during his incarceration at a rate to be determined by DOC. The order reflects it was distributed to Lopez's counsel and DOC.
¶6 Lopez filed a notice of post-conviction relief on December 8, 2016, apparently after DOC began taking funds from his paycheck and checked the space on the form he used to indicate he was raising a claim pursuant to Rule 32.1(d), (e), (f), (g) or (h), specifying he was raising a claim of newly discovered material facts and a claim that his failure to file a timely notice of post-conviction relief was without fault on his part. He asserted the trial court had ordered him to pay restitution without any notice to him or his counsel, violating his right to be present and heard.
¶7 In the petition filed by trial counsel, appointed to represent Lopez in the post-conviction proceeding, counsel stated she had not received the state's Motion for Restitution or the July 7 order, asserting she had no idea the court had entered an order of restitution until she received the November 21 order. Lopez argued the court lacked jurisdiction to enter the restitution order because the state had failed to request or provide support for an award of restitution before or at sentencing. He also argued the state had neither requested, nor did the court retain, jurisdiction for the purpose of entering a restitution order. Lopez acknowledged but attempted to distinguish this court's decision in State v. Grijalva, 242 Ariz. 72 (App. 2017). Lopez further argued the trial court had ordered him to pay restitution in his absence and had exceeded the $25,000 cap.
¶8 After the state filed a response to the petition, the trial court denied relief. Based primarily on this court's decision in Grijalva, the trial court concluded it had properly retained jurisdiction of the issue of restitution, having stated it was doing so in the sentencing minute entry. The court also rejected Lopez's claim that the amount awarded exceeded the cap of $25,000 because the plea agreement had expressly addressed that possibility and Lopez had agreed to pay the actual amount if higher than the cap. This petition for review followed.
¶9 At the outset, the notice of post-conviction relief was untimely. A restitution order entered after sentencing is separately appealable or, in the plea context, separately reviewable in a timely proceeding pursuant to Rule 32. Grijalva, 242 Ariz. 72, ¶ 11; see also Hoffman v. Chandler, 231 Ariz. 362, ¶ 19 (2013) (pleading defendant does not have right to appeal restitution order entered after sentencing judgment pursuant to A.R.S. § 13-4033(B) but may "vindicate" constitutional right to appellate review through Rule 32 proceeding). Thus, Lopez was required to file his notice of post-conviction relief within ninety days of the court's entry of the restitution order. See Ariz. R. Crim. P. 32.4(a)(2)(C).
¶10 The state raised the issue of timeliness in its response to the petition, but the trial court did not mention it in its ruling. However, as we previously noted, Lopez did specify in his notice that he was seeking relief pursuant to Rule 32.1(f), which "provides a procedural mechanism whereby a defendant who has failed to appeal through no fault of his or her own can obtain jurisdiction in this court." State v. Rosales, 205 Ariz. 86, ¶ 10 (App. 2003). Because the court addressed the merits of the claims Lopez raised in the petition, we infer the court granted the relief Lopez had requested under Rule 32.1(f). Cf. State v. Goldin, 239 Ariz. 12, ¶¶ 25-26 (App. 2015) (remanding case to trial court because it had not been asked to grant relief under Rule 32.1(f)). The record supports the grant of that relief because although it appears the state's motion for restitution was distributed to Lopez's counsel, the order was not.
¶11 However, Lopez's claim that the trial court abused its discretion in denying his petition is not persuasive. Based on the plea agreement, Lopez agreed to pay restitution, agreed the amount could exceed the $25,000 cap, and waived the right to a restitution hearing to determine the amount of restitution, agreeing to accept the victim's claim form "as conclusive proof of the victims' economic loss." We therefore reject Lopez's arguments in his petition for review that the court "committed structural error" by ordering him to pay restitution in his absence, and if not "structural error," then "fundamental error" because the amount awarded exceeded the capped amount.
¶12 Furthermore, based on the sentencing minute entry, we reject Lopez's argument that the trial court erred in finding it had retained jurisdiction to enter an award of restitution. Nor did the court err in relying on Grijalva as opposed to State v. Barrs, 172 Ariz. 42, 43 (App. 1992), in which the sentencing court failed to order restitution and attempted to correct the error by a post-sentence minute entry, and State v. Serrano, 234 Ariz. 491, ¶ 1 (App. 2014), wherein the court ordered the defendant to register as a sex offender in an order entered three weeks after sentencing. Here, the trial court did not modify an otherwise lawfully imposed sentence, as in Serrano. And nothing in Barrs suggests that to retain jurisdiction over restitution the court must do so orally, at the time of sentencing.
¶13 For the reasons stated, although we grant the petition for review, relief is denied.