State v. Phillips ( 1987 )

FELDMAN, Vice Chief Justice,

dissenting.

In my view, the sentencing court exceeded its statutory authority by misapplying the restitution statutes in this case.¹ The principal statute provides:

If a person is convicted of an offense, the court shall require the convicted person to make restitution to the person who is the victim of the crime ... in the full amount of the economic loss ...

A.R.S. § 13-603(C) (Supp.1986) (emphasis added).

Phillips did not plead guilty to striking the victim. He was charged only with leaving the scene of the accident (A.R.S. § 28-661), an act that was criminal but did not cause the injury. Cf. Thompson v. State, 557 S.W.2d 521, 524 (Tex.Cr.App.1977) (restitution permissible when defendant dragged accident victim more than 150 feet under car after failing to stop and render aid at the scene). Although Phillips admitted that his vehicle hit the victim, the trial court made no finding that Phillips was at fault in causing the accident, or that Phillips’s conduct leading to the accident was criminal.²

In effect, the trial court bypassed the civil justice system by requiring Phillips to pay civil damages without finding that he was legally responsible for the accident that caused the injury.³ See State v. Whitney, 151 Ariz. 113, 726 P.2d 210 (App.1985); State v. Skiles, 146 Ariz. 153, 154, 704 P.2d 283, 284 (App.1985) (court could not require restitution of a defendant who pleaded guilty to leaving the scene of an accident because there was no showing he had been at fault for the accident or had aggravated the victim’s injuries by fleeing the scene).

The majority attempts to distinguish Skiles and other cases by noting that Phillips agreed to pay the victim’s medical bills arising out of the accident. Maj.Op. 152 Ariz. at 534, 733 P.2d at 1117. The record reveals the error of this. First, the trial court told Phillips that he could be ordered to pay restitution for any “economic loss caused to the victim.” The plea agreement provided: “Restitution of economic loss to the victim in the amount of $ to be determined will be required.” (emphasis in original). A reasonable person could interpret these statements in conjunction with the restitution statutes—he would be required to pay the “economic loss” caused by the offense of which he was guilty—in this case, any aggravation of the original injury caused by leaving the scene of the accident. Second, and even more troubling, is the majority’s willingness to approve Phillips’s agreement to pay restitution for damages absent an adjudication of guilt or a factual finding that Phillips actually was guilty of a criminal offense (whether charged or not) that caused the damages. See Lee v. State, 307 Md. 74, 512 A.2d 372 (1986).

For reasons of public policy, a sentencing court should be permitted to accept a defendant's agreement to pay restitution for crimes other than the one(s) to which he has pleaded guilty, providing they are related to that for which he is convicted. Lee, 307 Md. at 79-81, 512 A.2d at 375, citing United States v. McLaughlin, 512 F.Supp. 907, 912 (D.Md.1981) (if a defendant could not consent to make restitution for actual loss, the government would have little reason to dismiss indictment counts to limit a defendant’s potential period of incarceration). However, a court may not require or accept restitution without a factual basis supporting the defendant’s guilt of the crimes for which he is being ordered to make restitution. Cf. Whitney, 151 Ariz. at 114, 726 P.2d at 211. A defendant facing possible prison time unless he plea bargains is in an inherently coercive situation. Therefore, I would allow a sentencing court to award restitution of an amount greater than the loss caused by the specific offense for which defendant was convicted only if: (1) the amount of loss suffered by an identifiable aggrieved party is certain; (2) there is a factual finding that defendant caused the loss; (3) the conduct causing the loss violated a criminal statute; and (4) the defendant consents, intelligently and voluntarily, to make full restitution⁴ as a condition of probation or plea bargain. Cf Lee, supra. This test is consistent with the rule that a court may not accept a plea of guilty without a factual basis for that plea. Rules 17.3 and 26.2(c), Ariz.R.Crim.P., 17A A.R.S. (Supp.1986).

So far as the record shows in this case, Phillips was offered probation on an illegal condition: that he pay restitution for an act that may not be his fault legally and that may not be a criminal offense. If his act was not criminal, restitution to the victim is properly a concern of the civil justice system. See People v. Richards, 17 Cal.3d 614, 131 Cal.Rptr. 537, 552 P.2d 97 (1976) (court cannot order restitution to victim of count on which defendant has been acquitted).

I dissent.

1 . Because Phillips is challenging the court’s authority for its actions and, thus, the legality of his sentence, I believe that his failure to object below is irrelevant. See State v. Whitney, 151 Ariz. 113, 115, 726 P.2d 210, 212 (App.1985); Walczak v. State, 302 Md. 422, 425, 488 A.2d 949, 951 (1985); State v. Broughton, 28 Or.App. 891, 561 P.2d 1040 (App.1977).

2 . Phillips was not charged with reckless driving under A.R.S. § 28-693 (Supp.1986), or any other criminal conduct that caused or led to the accident in which the victim was injured. Since the traffic code was decriminalized, passing on the right at a crosswalk is no longer a criminal offense. See A.R.S. §§ 28-181 (Supp.1986) and 28-723.

3 . Serious constitutional problems may exist with regard to A.R.S. § 13-804, which requires the court to impose restitution for the full amount of the loss, no matter what the circumstances, the defendant’s ability to pay, or the prospects that he ever will be able to pay. See Note, The Unconstitutionality of the Victim and Witness Protection Act Under the Seventh Amendment, 84 COLUM.L.REV. 1590 (1984); Note, The Constitutionality of the Victims’ Restitution Provisions of the Victim and Witness Protection Act, 70 VA.L.REV. 1059 (1984); Note, Victim Restitution in the Criminal Process: A Procedural Analysis, 97 HARV.L.REV. 931 (1984).

4 . I agree with the majority that the test set out in State v. Lukens was violated in this case.