State v. Contreras

885 P.2d 138, 180 Ariz. 450, 165 Ariz. Adv. Rep. 21, 1994 Ariz. App. LEXIS 103
CourtCourt of Appeals of Arizona
DecidedMay 17, 1994
Docket1 CA-CR 92-1857
StatusPublished
Cited by30 cases

This text of 885 P.2d 138 (State v. Contreras) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Contreras, 885 P.2d 138, 180 Ariz. 450, 165 Ariz. Adv. Rep. 21, 1994 Ariz. App. LEXIS 103 (Ark. Ct. App. 1994).

Opinions

OPINION

EHRLICH, Judge.

Joseph Michael Contreras (“defendant”) pled guilty to first-degree criminal trespass, a class 6 undesignated offense, for which two years of probation were ordered. He has appealed from the trial court’s later modification of the terms of probation to add a condition that he pay restitution to the victims of his crime. The sole issue presented is [452]*452whether a trial court may modify a defendant’s conditions of probation to impose restitution after probation has been ordered and in the absence of any grounds supporting its revocation. For the reasons which follow, we affirm the trial court’s order.

FACTUAL AND PROCEDURAL HISTORY

On June 16,1992, the defendant entered a written plea of guilty to first-degree criminal trespass. The charge arose from an incident occurring on March 22,1991, when the defendant went in a window of a neighbor’s home and several items of electronic equipment later were found to be missing. The plea agreement provided that “Restitution of economic loss to the victim ... [is] required” and stipulated that “Restitution, if any, [is] not to exceed $1000.00.” The defendant further stipulated that he fully understood that, if he were “granted probation by the court, the terms and conditions thereof are subject to modification at any time during the period of probation.” At the change-of-plea hearing, the following exchange also took place:

The Court: If there was any economic loss suffered by the victims, I will be requiring you to pay restitution. I see you are agreeing to pay up to $1,000 for that economic loss. Is that your understanding? The defendant: Yes, sir.

The trial court found that the defendant’s guilty plea was knowingly, intelligently and voluntarily made, that he understood the nature and range of sentences and other penalties, and that there was an appropriate factual basis for the plea.

The presentence report stated that one of the victims had told the police at the time of the incident that a VCR and cable box were missing and had to be replaced. This victim also had said that her son was missing an electronic mixer board and an 800-watt power amplifier. However, since the victim had not responded to inquiries concerning the value of the missing items, no probationary term regarding the payment of restitution was recommended to the court.

On July 15,1992, the trial court suspended the defendant’s sentence and imposed a two-year term of probation with certain terms and conditions. No restitution payments to the victims were ordered as a condition of probation at that time.

Two months later, the defendant’s probation officer petitioned the trial court to modify the conditions of probation to add a term ordering the defendant to pay restitution.1 The defendant objected, arguing that the victims had waived any right to restitution by neglecting to answer a letter from the Maricopa County Attorney’s Office requesting a list of expenses covering the missing items prior to his sentencing. The defendant also contended that the court lacked jurisdiction to modify the probationary terms absent some showing of grounds to revoke probation or other changed circumstances.

The trial court held restitution hearings on November 18 and December 1, 1992, during which one victim testified to economic losses of $220 for a VCR, $110 for a cable box and $200 for wages lost in attending court hearings. Her son reported that the value of his missing equipment totalled $1950. The mother acknowledged having received a letter dated June 22, 1992, from the County Attorney’s Office informing her of the defendant’s guilty plea and sentencing date, and stating that it would be “helpful” if she could provide a written list and substantiation for all of her losses, that she “probably” would be contacted by an investigator from the probation department, and that it was “very important” that the trial court receive this information prior to sentencing. She could not recall why she had not responded to the •letter, but denied having received any subsequent calls from the probation department concerning her losses.

The trial court found that principles of fundamental fairness required the imposition of restitution and that the plea agreement itself demonstrated the parties’ intention that restitution be ordered. It modified [453]*453the probationary terms to add a condition requiring payment of restitution but felt bound by the $1000 maximum specified in the plea agreement and therefore awarded only $330 to the victim and $670 to her son.2 The court again suspended sentence and imposed a two-year term of probation to begin on the date of the original judgment, modifying as was necessary the previously-ordered hours of community service to reflect credit for time served and rearranging the defendant’s financial obligations on probation so that the restitution payments became first priority. The defendant timely appealed.

DISCUSSION

The defendant argues that the trial court lacked jurisdiction to modify his terms of probation to add a condition that he pay restitution. He claims that the victims waived their right to restitution by not coming forward prior to sentencing and that the state’s failure to appeal the lack of restitution in the original disposition barred the court from disturbing that final judgment. In the alternative, the defendant contends that the trial court abused its discretion in allowing the modification because it imposed a greater burden upon him than the original terms of probation without a reasonable basis. Finally, he claims that the trial court's restitution order was an illegal sentence that violated his right to procedural due process.

The defendant relies on Burton v. Superior Court, 27 Ariz.App. 797, 558 P.2d 992 (App.1977), in support of his claims. In Burton, the defendant pled guilty to theft of a cement mixer and received a two-year term of probation. The trial court did not impose any restitution as a condition of probation. Fifteen months later, a petition to modify the terms of probation was filed to add a condition that the victim be paid restitution. The trial court granted the modification and extended the defendant’s term of probation so that he could make the restitution payments. This court reversed, finding no reasonable basis to justify the additional condition and held that, when additional burdens are imposed on probation, the record must demonstrate that the petitioner violated a term of probation or other changed circumstances. Id. at 800, 558 P.2d at 995.

Burton is distinguishable from the present case. Initially, Burton does not indicate whether the defendant had agreed as part of his plea agreement to pay restitution. Also, Burton’s term of probation was extended whereas this defendant’s term of probation remained unchanged. Finally, recent decisions of this court and a constitutional amendment on the subject of restitution have called the holding of Burton into question.

A trial court is required by Arizona Revised Statutes Annotated (“AR.S.”) section 13-603(C) to impose restitution to reimburse the victims of crime for their full economic loss. State v. Foy, 176 Ariz. 166, 168, 859 P.2d 789, 791 (App.1993); State v. Holguin, 177 Ariz.

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Cite This Page — Counsel Stack

Bluebook (online)
885 P.2d 138, 180 Ariz. 450, 165 Ariz. Adv. Rep. 21, 1994 Ariz. App. LEXIS 103, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-contreras-arizctapp-1994.