Eric L., In re

• Court: Arizona Court of Appeals
• Writing for the Court: WEISBERG; VOSS; KLEINSCHMIDT
• Citation: Eric L., In re, 943 P.2d 842, 189 Ariz. 482 (Ariz. App. 1997)
• Decision Date: 17 April 1997
• Docket Number: No. 1,CA-JV,1
• Parties: , 241 Ariz. Adv. Rep. 8 In re ERIC L. 96-0108.

Page 842

943 P.2d 842

189 Ariz. 482, 241 Ariz. Adv. Rep. 8

In re ERIC L.

No. 1 CA-JV 96-0108.

Court of Appeals of Arizona Division 1, Department E.

April 17, 1997.

Review Denied Sept. 16, 1997.

[189 Ariz. 483] Richard M. Romley, Maricopa County Attorney by Linda Alauria, Deputy County Attorney, Phoenix, for Appellee State of Arizona.

Dean W. Trebesch, Maricopa County Public Defender by Joel Martin Glynn and John W. Melvin, Deputy Public Defenders, Phoenix, for Juvenile.

OPINION

WEISBERG, Judge.

Eric L. ("the juvenile") appeals the orders of the juvenile commissioner adjudicating him delinquent and ordering him to pay restitution to the victim. We affirm in part and reverse in part.

FACTUAL AND PROCEDURAL HISTORY

On February 5, 1996, the state filed a delinquency petition against the juvenile alleging that he had committed two counts of burglary, two counts of theft, and one curfew violation. At the adjudication hearing, the juvenile agreed to admit to one count of attempted burglary and one count of theft. He also agreed to pay restitution to the victim in an amount to be determined by the court, not to exceed $1000. In exchange, the state agreed to drop the remaining charges.

The juvenile commissioner's minute entry reflects that the juvenile was advised of his constitutional rights and agreed to waive them. It also reflects that the juvenile wished to enter into the proposed agreement, that he admitted the factual basis for the crimes, and that his admission was not the result of any threats, coercion, or undue promises. Accordingly, the juvenile was adjudicated delinquent and a time was set for the disposition hearing.

At the disposition hearing, the juvenile was placed on probation in the physical custody of his mother and stepfather and the protective custody of a probation officer. Special term eleven of probation, regarding restitution, was to "remain open" pending a restitution hearing. At the restitution hearing, the commissioner ordered the juvenile to reimburse the victim for her economic losses caused by the theft.

The juvenile filed his notice of appeal and argues here that his plea was not voluntarily and intelligently entered because the commissioner failed to adequately inform him of his constitutional rights. He further argues that the commissioner abused her discretion in ordering restitution. In response, the state argues that the juvenile's notice of appeal was untimely as to the adjudication and disposition hearings, and therefore any issue related to the juvenile's admission must be dismissed. In the alternative, the state argues that the juvenile's admission was voluntarily and intelligently made and that the commissioner did not abuse her discretion in ordering restitution.

I. Notice of Appeal

The commissioner entered the adjudication order on March 11, 1996. At the disposition hearing on April 25, 1996, the juvenile was placed on probation, but the restitution issue was continued. On May 28, 1996, the restitution order was entered. A notice of appeal from all three orders was filed on June 11, 1996. The state maintains that, while the notice of appeal was timely as to the restitution order, it was untimely as to the adjudication and disposition orders. We disagree.

A notice of appeal must be filed within 15 days after the final order of the juvenile court is filed by the clerk. Ariz. R.P. Juv. Ct. 25(a) ("Rule(s)"). In In re Maricopa County Juvenile Action No. J-74222, 20 Ariz.App. 570, 571, 514 P.2d 741, 742 (1973), this court held that the "final order" for purposes of Rule 25(a) is the disposition order because it is the "one that disposes of all issues ... before the Juvenile Court." Consequently, a notice of appeal filed 15 days after entry of the disposition order would be timely as to both the adjudication order and the disposition order. Id. Furthermore, to avoid piecemeal appeals, the disposition order was held to be the only final order, rendering adjudication orders no longer separately appealable. Id.

Ten years after J-74222 was decided, the legislature amended the statute that is now designated Ariz.Rev.Stat. Ann. (A.R.S.) section 8-241(D). ¹ See 1983 Ariz. Sess. Laws ch. 257, § 2. That amendment made the hitherto discretionary restitution order a mandatory part of a juvenile disposition. See id. (substituting "shall" for "may"); In re Maricopa County Juvenile Action No. JV-503009, 171 Ariz. 272, 274, 830 P.2d 484, 486 (App.1992) ("After considering the specified criteria, a juvenile court is statutorily obligated to order a juvenile who has been adjudicated delinquent to pay either full or partial restitution to the victim of the offense."). The statute now reads, in relevant part:

D. The court shall, after considering the nature of the offense and the age, physical and mental condition and earning capacity of the child, order the following dispositions for a delinquent child, either as exclusive dispositions or in addition to the dispositions provided by subsection A, paragraph 2 of this section:

1. To make full or partial restitution to the victim of the offense for which the child was adjudicated delinquent.

A.R.S. § 8-241(D)(1). Thus, since the 1983 amendment, the order denominated "disposition" is necessarily interlocutory in nature when restitution remains an unresolved issue. The juvenile's disposition is therefore not final until restitution has been considered and ruled upon.

Consequently, applying the reasoning of J-74222, we hold that, when restitution remains at issue, the final order for purposes of Rule 25(a) is the restitution order. Until that order has been entered, no appeal may be taken. And, when the notice of appeal is filed, it encompasses all previous orders entered by the juvenile court. This practical result will reduce the number of documents required to be filed with the court, reduce the amount of counsel's paperwork, and avoid piecemeal appeals. See J-74222, 20 Ariz.App. at 571, 514 P.2d at 742.

We therefore conclude that the juvenile's notice of appeal was timely because it was filed within 15 days of the restitution order.

II. Voluntary and Intelligent Admission

After the petition was filed against the juvenile, he signed an affidavit stating that he understood that he had the following rights: to remain silent, to be represented by counsel, to a hearing to determine his guilt or innocence, and to call witnesses on his own behalf and cross examine the witnesses against him. He also signed an "Invocation of Fifth and Sixth Amendment Rights," which gave notice that he was exercising his "Fifth Amendment right not to incriminate [him]self ... and all rights to which [he was] entitled under Article II, §§ 10 and 24 of the Arizona Constitution." When the juvenile admitted to two charges at the adjudication hearing, the following exchange took place between him and Commissioner Verdin:

Court: Eric, the attorneys are telling me that you wish to admit to some charges today. Is that true?

Juvenile: Yeh.

Court: If you admit today, there will not be a trial. Do you know what a trial is?

....

Juvenile: Yes.

....

Court: If you admit, you are giving up your right to a trial, but you're also giving up your right to remain silent. That means you have to tell me in your own words what it is you did wrong. Do you understand that?

Juvenile: Yes.

Court: Is that what you would like to do?

Juvenile: Yes. Court: If you admit today, there will be another hearing in the future called a Disposition Hearing. At a Disposition Hearing, you get a consequence for your inappropriate behavior. That consequence could include being placed on probation at home or outside of your home, but you could also be sent to the State Department of Juvenile Corrections until you turn 18. You could be detained here. You could be ordered to pay a fine. You could be ordered to do community service work. You could be ordered to go to drug testing, to counseling, or some other type of educational program. You might also be ordered to pay restitution. Restitution means paying someone back for damages that you may have done. Do you understand the things that could happen to you?

Juvenile: Yes.

Court: Has anybody threatened you in any way in order to make you admit?

Juvenile: No.

The juvenile then gave the commissioner a factual basis for his admissions and the commissioner found "that the juvenile has knowingly, intelligently, and voluntarily entered into an admission of Count I and Count II."

The juvenile now argues that his admissions were not voluntary and intelligent because the commissioner failed to properly advise him of his right to remain silent and his right to confront his accusers. We disagree.

In order that a juvenile's admission to a charge be voluntary and intelligent, he or she must be aware of the rights that are waived by entering into the admission. In re Maricopa County Juvenile Action No. J-86715, 122 Ariz. 300, 302-03, 594 P.2d 554, 556-57 (App.1979); see also Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Those rights include:

1. The right against self-incrimination,

2. The right to confront one's accusers,

3. The right to a trial in the form of an adjudication hearing, and

4. The potential dispositions.

J-86715, 122 Ariz. at 303, 594 P.2d at 557. Furthermore, the record of the admission proceeding must affirmatively show that the juvenile was aware of these rights. Such awareness may not be presumed from a silent record. Id. at 302-03, 594 P.2d at 556-57. The "record," however, is not limited to the hearing transcripts. State v. Darling, 109 Ariz. 148, 152, 506 P.2d 1042, 1046 (1973). It includes the instruments filed with the trial court and the minute entries. See id.

In this case, the record is not silent. The juvenile signed an affidavit stating that he was aware of and understood his rights, including his rights to remain silent and to confront his accusers. Later, with the aid of counsel, he also signed a...