In Re Michelle G.

FILED BY CLERK
JAN 10 2008
IN THE COURT OF APPEALS COURT OF APPEALS
STATE OF ARIZONA DIVISION TWO
DIVISION TWO
) 2 CA-JV 2007-0014
) DEPARTMENT A
)
IN RE MICHELLE G. ) OPINION
)
)
)
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. 10803904
Honorable Theodore J. Knuck, Judge
VACATED
Barbara LaWall, Pima County Attorney
By Ellen R. Brown Tucson
Attorneys for State
Robert J. Hooker, Pima County Public Defender
By Susan C. L. Kelly Tucson
Attorneys for Minor
H O W A R D, Presiding Judge.
¶1 Michelle G. appeals from the juvenile court’s January 2007 order that she pay
restitution to the victim of criminal damage she had committed in 2004. She contends the
juvenile court abused its discretion by ordering restitution after her disposition had become
final. We agree and therefore vacate the order.
Factual and Procedural Background
¶2 On February 3, 2005, Michelle was adjudicated delinquent on various charges
stemming from multiple delinquency petitions. In the December 2004 delinquency petition,
the state alleged that Michelle had “caused damage in an amount of more than $250 but less
than $2,000” to a car.1 This charge was dismissed pursuant to Michelle’s plea agreement,
and Michelle supplied no factual basis for it. A written plea agreement was not filed with
the court. At the change-of-plea hearing, the court asked whether there was “any
restitution.” The prosecutor replied that “there [was] a restitution cap of $2,500,” and the
court informed Michelle that she “could have to pay up to $2,500 in restitution on any of
[the counts against her], even the ones that [were] dismissed.”2
¶3 The juvenile court set a disposition hearing for March 9, 2005, but Michelle
ran away from home approximately a week before the hearing, and the disposition did not
take place as scheduled. Michelle was detained on June 6, and the state filed a new
delinquency petition. On July 21, the juvenile court adjudicated Michelle delinquent on
charges stemming from the June petition and, in a disposition order encompassing that and
1
At the January 2007 restitution hearing, the victim testified that Michelle had caused
damage to his wall, not his car. Michelle has not denied having damaged the victim’s wall
nor claimed there was insufficient evidence that she had done so.
2
Michelle does not contend on appeal that the court’s statement did not accurately
reflect her plea agreement.
2
the earlier adjudication, imposed a one-year term of juvenile intensive probation supervision.
Although the victim on the criminal damage charge had submitted a restitution affidavit to
the prosecutor before the original date set for disposition, the state did not request restitution
at the July 21 hearing. The juvenile court did not set a later date by which restitution could
be requested but informed Michelle that she had “a right to appeal [the court’s] decision
placing [her] on probation . . . within 15 days.”
¶4 Between September 2005 and May 2006, the state filed multiple new
delinquency petitions and petitions to revoke Michelle’s probation. She was adjudicated
delinquent and found in violation of her probation on those petitions. As a result, her
probation was revoked, she spent time in residential treatment facilities, and she was
eventually committed to the Arizona Department of Juvenile Corrections (ADJC) on June
1, 2006.
¶5 The state did not raise the issue of restitution for the criminal damage charge
at any of the hearings on the new delinquency petitions and petitions to revoke probation.
However, on September 15, 2006, it filed a motion to set a status hearing, in which it asked
the juvenile court to order restitution on the 2004 criminal damage charge, claiming such an
order had been “inadvertently left out of probation conditions” imposed in July 2005. At
the subsequent status hearing on October 27, 2006, Michelle’s counsel objected that the
state’s restitution request was untimely. The court stated in its minute entry that it
“believe[d] there [was] an excuse for the late filing.” Noting that the victim’s restitution
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affidavit had been previously disclosed to Michelle, the court set a restitution hearing for
November 30, 2006, and ordered the prosecutor to “file a motion [or] whatever briefs she
want[ed] to file by November 16, 2006.”
¶6 The state filed a motion for restitution, in which it claimed the victim had
submitted a restitution affidavit to the juvenile court on November 23, 2004. The state
acknowledged, however, that it had failed to raise the issue of restitution at the July 2005
disposition hearing or at any time before the victim contacted the county attorney’s victim-
rights advocate a year later. Although the state claimed its “oversight” was “due in large part
to the conduct of the juvenile,” it failed to explain how Michelle was at fault for its failure
to timely request restitution on the victim’s behalf. The state argued that the juvenile court
was statutorily required to order restitution and that, because the state had disclosed the
victim’s restitution affidavit to Michelle on December 28, 2004, Michelle had “had notice
that restitution was required” before she entered into the plea agreement.
¶7 Michelle appeared telephonically at the oral argument on the state’s motion
and informed the court she believed she was due to be released from ADJC on January 2,
2007. Over Michelle’s objection, the juvenile court set a restitution hearing for January 24,
2007.3 At that hearing, the victim testified that the original estimate to repair his property
3
Although Michelle had notice of the restitution hearing, she did not appear at the
hearing. The prosecutor told the juvenile court she had contacted ADJC and had been told
that Michelle was no longer there and that her family had moved. It is unclear from the
available record whether, at the time of the restitution hearing, Michelle had satisfied all
consequences imposed on her as a result of her delinquency adjudications.
4
had been $625, but the repair estimate had increased over time to $950. The juvenile court
found that “restitution should have come before the Court in 30 to 60 days” and ordered
Michelle to pay $625.
Discussion
¶8 Preliminarily we address the state’s assertion, made initially in its motion for
restitution and repeated on appeal, that a request for restitution had been timely filed with
the juvenile court. The clerk’s record on appeal does not support this claim. The state has
not directed us to, nor have we found, the affidavit of the victim that the state claimed had
been submitted to the juvenile court in November 2004. Moreover, the victim’s testimony
at the restitution hearing, which was not set until October 27, 2006,4 made clear that he had
submitted information about restitution to the county attorney, not the court. We therefore
assume for purposes of this appeal that the victim timely submitted an affidavit or other
proof of loss to the county attorney, but that the information was not, in turn, timely
submitted to the juvenile court on the victim’s behalf.
¶9 Michelle argues that the juvenile court abused its discretion in ordering
restitution more than a year after the disposition hearing on the underlying charge. “We
review a juvenile court’s restitution order for an abuse of discretion.” In re Andrew C., 215
Ariz. 366, ¶ 6, 160 P.3d 687, 688 (App. 2007).
4
The status hearing at which the court set the restitution hearing took place on
October 27, 2006. The juvenile court signed the minute entry from that hearing on
November 2, 2006, and the order was filed with the clerk of the court on the same date.
5
¶10 When “a juvenile is adjudicated delinquent, the court, after considering the
nature of the offense . . . shall order the juvenile to make full or partial restitution to the
victim of the offense for which the juvenile was adjudicated . . . .” A.R.S. § 8-344(A). A
victim of charges dismissed pursuant to a plea agreement may exercise a victim’s statutory
rights. A.R.S. § 8-383.01(A). A victim has a right to be present and address the court at any
disposition proceeding and to present evidence regarding restitution at any predisposition
or disposition proceeding. A.R.S. § 8-405; see also A.R.S. § 8-400. “Before the court can
impose an order of restitution, a victim must present evidence to establish that the victim’s
loss relates directly to the juvenile’s offense and to provide a basis for setting an amount that
is not speculative.” In re Alton D., 196 Ariz. 195, ¶ 9, 994 P.2d 402, 404 (2000) (citation
omitted).
¶11 “[T]he proper approach to restitution is to include it as part of, or as an order
entered concurrently with, the remainder of the disposition.” In re Kevin A., 201 Ariz. 161,
¶ 7, 32 P.3d 1088, 1090 (App. 2001). A juvenile court may hold restitution open beyond
the disposition hearing by setting a later, reasonable deadline by which restitution claims
may be made or are thereafter barred. See Alton D., 196 Ariz. 195, ¶ 19, 994 P.2d at 407-
08; In re Frank H., 193 Ariz. 433, ¶ 15, 973 P.2d 1194, 1197-98 (App. 1998). But
“[i]ssuance of a separate restitution order after the rest of the disposition is an exception
permitted only by court-ordered extension.” Kevin A., 201 Ariz. 161, ¶ 7, 32 P.3d at 1090.
6
¶12 A juvenile court abuses its discretion by ordering restitution after it has issued
a final disposition order. See Alton D., 196 Ariz. 195, ¶ 1, 944 P.2d at 403 (restitution
claims “barred” after entry of final order); Kevin A., 201 Ariz. 161, ¶ 2, 32 P.3d at 1089
(entry of restitution order precluded after final disposition). A disposition order is final
when it “‘disposes of all issues . . . before the Juvenile Court.’” In re Eric L., 189 Ariz. 482,
483, 943 P.2d 842, 843 (App. 1997), quoting In re Maricopa County Juvenile Action No.
J-74222, 20 Ariz. App. 570, 571, 514 P.2d 741, 742 (1973). Thus, “when restitution
remains at issue,” a disposition order is “not final until restitution has been considered and
ruled upon.” Id. at 484, 943 P.2d at 844; see also Alton D., 196 Ariz. 195, ¶ 9, 944 P.2d
at 404 (“Restitution order constitutes the final order for appeal purposes.”).
¶13 In this case, a formal claim for restitution was not filed in the juvenile court
until over a year after the disposition hearing. Although the victim had submitted a
restitution affidavit to the prosecutor well in advance of disposition, the prosecutor did not
provide the affidavit to the court or otherwise ask the court to consider restitution before or
at the disposition hearing. No written “[d]ispositional [i]nvestigation and [r]eport,” which
should have included information regarding restitution claims, if any, was submitted to the
juvenile court pursuant to Rule 30, Ariz. R. P. Juv. Ct.5 And the victim did not exercise his
5
The juvenile court’s disposition order states that Michelle “waive[d] the requirement
of a written report as to the new adjudication.” See Ariz. R. P. Juv. Ct. 30(A)(3) (“Upon
stipulation of the parties and order of the court, the disposition report may be waived if the
victim did not provide a written impact statement as provided by law.”). The record does
not indicate a waiver with regard to Michelle’s adjudication on the December 2004 petition.
7
right to apply to the court directly for restitution, nor did he present any evidence to the
court at or before disposition.
¶14 Although Michelle’s plea agreement included a restitution cap, we believe the
mere mention of a restitution cap at the change-of-plea hearing was insufficient to cause
restitution to be at issue at the disposition hearing. At most, the restitution cap indicated
that a restitution claim might be forthcoming. No claim having been made to the juvenile
court at or before the disposition hearing, however, the court’s disposition order resolved
all issues that had been placed before it. Because the juvenile court did not set a deadline
allowing later claims for restitution, the issue of restitution was not held open beyond the
disposition, and the disposition order thus became final and appealable when it was signed
by the judge and filed by the clerk of the court in July 2005. See Ariz. R. P. Juv. Ct. 89(A)
(“A final order shall be in writing and signed by the judge . . . .”). Indeed, the court told
Michelle she had the right to appeal that order within fifteen days. Neither party appealed.
Therefore, the juvenile court lacked any authority to reopen the final order and abused its
discretion by entering a restitution order in January 2007. See Alton D., 196 Ariz. 195,
¶ 13, 944 P.2d at 405.
¶15 We are aware, of course, that the victim in this case was apparently relying on
the prosecutor to timely assert his claim for restitution as he was permitted to do under
A.R.S. § 8-416(C). This is not the first case we have reviewed in which the county attorney
has failed in its duty to request restitution for a victim. This time, however, the courts
8
cannot save the victim from the county attorney’s negligence. We note that, although “[t]he
failure to use reasonable efforts to perform a duty or provide a right is not a cause to seek
to set aside an adjudication or disposition,” A.R.S. § 8-415(A), “[a] victim has the right to
recover damages from a governmental entity responsible for the intentional, knowing or
grossly negligent violation of the victim’s rights under the victims’ bill of rights, any
implementing legislation or court rule.” A.R.S. § 8-416(B) (citation omitted). The special
concurrence correctly notes that the victim will be required to clear additional hurdles in
order to receive restitution from the state based on the state’s “nonfeasance.” Infra ¶ 20;
see also infra n.6. But, as noted above, supra ¶ 6, the state’s professed reason for its failure
to perform the simple ministerial act of filing the victim’s claim with the court is invalid.
Conclusion
¶16 Based on the foregoing, we hold the trial court abused its discretion when it
imposed restitution on Michelle G. We therefore vacate the restitution order. See Kevin A.,
201 Ariz. 161, ¶ 12, 32 P.3d at 1091.
____________________________________
JOSEPH W. HOWARD, Presiding Judge
CONCURRING:
____________________________________
J. WILLIAM BRAMMER, JR., Judge
P E L A N D E R, Chief Judge, specially concurring.
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¶17 This case illustrates the tension that can occur between the need for prompt
resolution of juvenile cases, including a juvenile delinquent’s right “to receive a timely, final
disposition,” and a victim’s right to seek and recover restitution for damage caused by
juvenile offenders. Alton D., 196 Ariz. 195, ¶ 7, 994 P.2d at 404; see also Kevin A., 201
Ariz. 161, ¶ 11, 32 P.3d at 1090. I reluctantly join in this decision because I believe the law
compels me to do so, but I write separately to express my concerns about the unfortunate
and apparently recurring circumstances that produce a result such as this—where an
innocent and diligent victim somehow gets lost in the shuffle, is unable to recover on a valid
restitution claim and, therefore, ends up being the real loser despite the victim’s
constitutional and statutory right to receive restitution. See Ariz. Const. art. II, § 2.1(A)(8);
A.R.S. § 8-344(A).
¶18 Procedurally, if anyone was prejudicially disadvantaged here, it would appear
to be the victim, not Michelle. At her change-of-plea hearing in February 2005, Michelle
said she understood that she would “have to pay” for any property damage she had caused.
She does not dispute that, apparently as early as November 2004, the victim’s restitution
affidavit had been furnished not only to the prosecutor but also to her. For reasons that are
not clear in the record, however, the state did not request restitution at the July 2005
disposition hearing, nor did the juvenile court address or order restitution at that hearing or
in its disposition order. The court told Michelle she could appeal from that order within
fifteen days, but she neither did so nor suggested that the order was not yet final and
10
appealable. Although the victim did not cause or contribute to the delay, his restitution
claim was not addressed until the state finally requested an award on his behalf in
September 2006, and the court, after a noticed hearing that Michelle failed to even attend,
then ordered restitution in early 2007.
¶19 Unlike Alton D., this is not a case in which the juvenile court set a reasonable
deadline, or for that matter any time limit, within which a restitution claim had to be
submitted. See Alton D., 196 Ariz. 195, ¶¶ 2, 19, 994 P.2d at 403, 406-07. And, unlike the
situation in Kevin A., in this case the juvenile court never indicated that “‘restitution [would]
be closed’” at a certain point in time. Kevin A., 201 Ariz. 161, ¶ 3, 32 P.3d at 1089; see
also In re Richard B., 216 Ariz. 127, ¶ 17, 163 P.3d 1077, 1081 (App. 2007). Nor did the
victim fail to comply with any deadline or other order concerning restitution. Compare
Alton D., 196 Ariz. 195, ¶ 19, 994 P.2d at 407 (holding that “when, in light of the
circumstances of a particular case, the court sets a reasonable deadline by which victims
must present their restitution claims and supporting evidence, any victim who fails to comply
is barred from recovery”), and Kevin A., 201 Ariz. 161, ¶¶ 4, 8, 32 P.3d at 1089, 1090
(when court ordered restitution “closed” after date certain and “victim filed no timely
statement” and provided no verified statement to prosecutor, subsequent restitution award
invalid), with Richard B., 216 Ariz. 127, ¶ 18, 163 P.3d at 1081 (restitution award upheld
when tardy claim caused no prejudice or undue delay to juvenile’s final disposition and
11
when record “support[ed] the juvenile court’s finding of good cause to allow its restitution
order”).
¶20 In short, any “falling through the cracks” or “dropping of the ball” in this case
was solely attributable to the state’s nonfeasance and the juvenile court’s failure to fulfill
its statutory mandate under A.R.S. § 8-344(A). As a result, the victim is left “holding the
bag” on his restitution claim, and Michelle remains unaccountable for the damage she
caused.6 Nonetheless, in Alton D. our supreme court clearly counseled against open-ended,
indefinite time frames for presenting restitution claims. 196 Ariz. 195, ¶¶ 8-11, 994 P.2d at
404. Although distinguishable on its facts, that case seemingly does not condone a juvenile
court’s essentially re-opening an otherwise final disposition order many months or even
years later for purposes of awarding or adjusting restitution, particularly without expressly
finding good cause for the delay and no prejudice to the juvenile. For these reasons,
although I cannot disagree with the principal opinion’s analysis or conclusion, the ultimate
result strikes me as both unfortunate and unfair. Hopefully the state and the juvenile courts
will take heed in the future by vigilantly and timely including victims’ restitution claims in
the disposition process.
6
The victim’s statutory right to recover damages for any “intentional, knowing or
grossly negligent” governmental conduct appears rather illusory because conduct worse than
mere negligence must be shown and because that same statute neither “alters [n]or abrogates
any provision for immunity provided for under common law or statute.” A.R.S. § 8-416(B).
In addition, any disenfranchised victim seeking relief under § 8-416(B) presumably would
have to comply with the notice-of-claim filing requirements and time deadlines imposed by
A.R.S. § 12-821.01.
12
____________________________________
JOHN PELANDER, Chief Judge
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