State v. Billingsley ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
RICHARD PAUL BILLINGSLEY, Appellant.
No. 1 CA-CR 20-0495
FILED 4-8-2021
Appeal from the Superior Court in Yavapai County
No. P1300CR201801170
The Honorable Krista M. Carman, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee
Oliverson & Huss, PLLC, Tempe
By Jeremy L. Huss
Counsel for Appellant
STATE v. BILLINGSLEY
Decision of the Court
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Cynthia J. Bailey joined.
W I N T H R O P, Judge:
¶1 Richard Paul Billingsley (“Appellant”) pled guilty to one
count of theft in violation of Arizona Revised Statutes (“A.R.S.”) section 13-
1802(A)(1) and one count of theft (unlawful use of power of attorney) in
violation of A.R.S. § 13-1815(A). The court suspended Appellant’s sentence,
placed him on supervised probation for three years, and, following an
evidentiary hearing, entered judgment ordering Appellant to pay $21,910
in restitution to the estate of P.B. (“the victim”).
¶2 This appeal of the restitution judgment is filed in accordance
with Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297(1969). Appellant’s counsel advised this court that he has searched the
record and found no arguable question of law to raise on appeal. He
requests we conduct our own independent review of the record for
fundamental error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999)
(stating this court reviews the entire record for reversible error). We
allowed Appellant the opportunity to file a supplemental brief in propria
persona, but he has not done so.
¶3 We have appellate jurisdiction pursuant to Article 6, Section
9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031,
and -4033(A)(1). Finding no reversible error, we affirm.
FACTS1 AND PROCEDURAL HISTORY
¶4 In December 2012, the victim was a resident of the Arizona
Pioneers’ Home in Prescott and granted a power of attorney (“POA”) to
Arizona Elder Care, LLC, to manage his affairs. Arizona Elder Care
exercised that POA until November 13, 2017, when the victim revoked that
authority and instead granted a POA to Appellant.
1 “We view the evidence in the light most favorable to sustaining the
verdicts and resolve all inferences against appellant.” State v. Fontes, 195
Ariz. 229, 230, ¶ 2 (App. 1998).
2
STATE v. BILLINGSLEY
Decision of the Court
¶5 From November 9, 2017, to December 8, 2017, the victim’s
checking account balance declined from $19,749.49 to negative $2.01.
During that same period, the victim’s savings account balance declined
from $511 to negative $4.89. In total, bank statements showed that,
pursuant to the POA, Appellant withdrew $21,910 from the victim’s
accounts over the course of just one month.
¶6 After learning that the victim’s accounts were overdrawn, an
employee at Arizona Pioneers’ Home contacted Adult Protective Services
(“APS”) and made a report to the City of Prescott Police Department. The
Arizona Pioneers’ Home employee also notified Arizona Elder Care of the
situation, following which, Arizona Elder Care also contacted APS. The
victim later restored POA authority with Arizona Elder Care. In April 2018,
the victim passed away and Arizona Elder Care became the personal
representative for the victim’s estate.
¶7 In August 2018, Appellant was indicted for one count of theft
of property with a value of $4,000 or more but less than $25,000, a class 3
felony, and one count of theft (unlawful use of power of attorney), a class 3
felony. As previously noted, Appellant eventually pled guilty to both
counts and was placed on supervised probation for three years.
Additionally, Appellant was ordered to be incarcerated in the Yavapai
County Jail for 120 days, to commence upon written request of the Adult
Probation Department and further order of the court. The plea agreement
provided that restitution of economic loss to the victim or the victim’s
surrogate would not exceed $50,000.
¶8 The court held a restitution hearing in October 2020 and heard
testimony from the victim’s case manager at Arizona Elder Care, an
Arizona Elder Care fiduciary who assisted the victim, and the lead
investigator on the criminal case from the public defender’s office. In
addition to the bank records documenting when and how much money
Appellant had withdrawn from the victim’s accounts, the State presented
evidence that the terms of Appellant’s POA did not allow Appellant to pay
himself a salary and did not expressly authorize “gifts” from the victim’s
assets.
¶9 Appellant argued there was no evidence presented as to
where some of the larger withdrawals went and reasoned the money may
have been used for the victim’s benefit.2 Appellant also contended there
2 In previous months, the victim’s monthly expenses were
approximately $1,300.
3
STATE v. BILLINGSLEY
Decision of the Court
was no way to know the withdrawals were not gifts from the victim to
Appellant, pointing out that the victim had earlier gifted Appellant $6,000
in October 2017, which gift was approved by Arizona Elder Care. In
addition, Appellant presented evidence that the victim had previously
made gifts to individuals handling his affairs pursuant to a POA but then
later requested the return of those gifts.
¶10 The case manager testified the victim told the case manager
he “wanted to help [Appellant], and he did help [Appellant]” with the
$6,000 gift, but he “did not want to give [Appellant] all the money from his
account[s]” and that it “broke his heart that [Appellant] would steal from
him.”
¶11 Following the hearing, the court found that the State had
proven its restitution case and ordered Appellant to pay $21,910 to the
victim’s estate. Appellant timely appealed.
ANALYSIS
¶12 We have reviewed the entire record for reversible error and
find none. See Leon, 104 Ariz. at 300; Clark, 196 Ariz. at 537, ¶ 30. The record
reflects the proceedings were conducted in compliance with Appellant’s
constitutional and statutory rights and conformed to the Arizona Rules of
Criminal Procedure. Appellant was represented by counsel at all stages of
the proceedings, and he was present during all critical stages. The State
presented sufficient evidence to support the amount of restitution imposed.
¶13 Upon the filing of this decision, Appellant’s counsel shall
inform Appellant of the status of his appeal and of his future options.
Counsel has no further obligations unless, upon review, counsel finds an
issue that may be appropriately submitted to the Arizona Supreme Court
for review. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984). Appellant has
thirty days from the date of this decision to proceed, if he desires, with a pro
per motion for reconsideration or petition for review.
4
STATE v. BILLINGSLEY
Decision of the Court
CONCLUSION
¶14 For the foregoing reasons, we affirm the judgment ordering
Appellant to pay $21,910 in restitution to the victim’s estate.
AMY M. WOOD • Clerk of the Court
FILED: AA
5