E.H. v. Slayton

• Decision Date: 04 August 2020
• Docket Number: No. CR-19-0118-PR,CR-19-0118-PR
• Citation: 249 Ariz. 248,468 P.3d 1209
• Parties: E.H. Petitioner, v. The Honorable Dan SLAYTON, Judge of the Superior Court of the State of Arizona, IN AND FOR The COUNTY OF COCONINO, Respondent Judge, State of Arizona; Jason Conlee; Lenda Hester; Kimmy Wilson, Real Parties in Interest.
• Court: Arizona Supreme Court

249 Ariz. 248

468 P.3d 1209

E.H. Petitioner,

v. The Honorable Dan SLAYTON, Judge of the Superior Court of the State of Arizona, IN AND FOR The COUNTY OF COCONINO, Respondent Judge,State of Arizona; Jason Conlee; Lenda Hester; Kimmy Wilson, Real Parties in Interest.

No. CR-19-0118-PR

Supreme Court of Arizona.

Filed August 4, 2020

William Ring, Coconino County Attorney, Stacy L. Krueger, Michael S. Tunink (argued), Kory Koerperich, Deputy County Attorneys, Flagstaff, Attorneys for the State of Arizona

Colleen Clase (argued), Jessica Gattuso, Eric Aiken, Robert Swinford, Phoenix, Arizona Voice for Crime Victims, Attorneys for E.H.

C. Kenneth Ray II, P.L.L.C., Prescott, Attorney for Lenda Hester

Ryan J. Stevens, Griffen & Stevens Law Firm, PLLC, Flagstaff, Attorneys for Kimmy Wilson

Randall Udelman, Arizona Crime Victims Rights Law Group, Phoenix, Attorneys for Amicus Curiae National Crime Victim Law Institute

CHIEF JUSTICE ROBERT BRUTINEL authored the opinion of the Court, in which VICE CHIEF JUSTICE TIMMER and JUSTICES BOLICK, GOULD, LOPEZ, BEENE and MONTGOMERY joined.

CHIEF JUSTICE BRUTINEL, opinion of the Court:

¶1 Victims have a statutory right to receive full restitution for economic loss caused by a defendant. A.R.S. § 13-603(C) ; see also Ariz. Const. art. 2, § 2.1 (A)(8) (providing that victims have a right to receive "prompt restitution"). Here, we hold that the practice of placing a cap on the amount of restitution a defendant may be liable for in a plea agreement, without the victim's consent, violates the right to restitution. There is no constitutional requirement to inform a defendant of a specific amount of restitution or to cap the amount of restitution that a court may order, and thus we overrule State v. Lukens , 151 Ariz. 502, 729 P.2d 306 (1986), State v. Phillips , 152 Ariz. 533, 733 P.2d 1116 (1987), and State v. Crowder , 155 Ariz. 477, 747 P.2d 1176 (1987) for that proposition.

¶2 Additionally, we hold that a lawyer representing a victim has a presumptive right to sit in front of the bar in the courtroom during a proceeding where a victim's constitutional or statutory rights are at issue.

I. BACKGROUND

¶3 Six-year-old J.H. was severely abused and eventually killed by his aunt, Lillian Hester. Hester was convicted of child abuse and first degree murder and ordered to pay restitution to E.H., J.H.’s older half-sibling who witnessed the abuse and is a victim under A.R.S. § 13-4401(19). Three other individuals, Lenda Hester, Jason Conlee, and Kimmy Wilson,¹ pled to charges of endangerment or child abuse in connection with J.H.’s death. Each defendant entered into a plea agreement in which he or she was jointly and severally liable to E.H. for restitution. The maximum amount of liability for restitution was limited to or "capped" at $500,000.

¶4 E.H. objected to the plea agreement caps on restitution based upon her constitutional and statutory rights to restitution under the Victim's Bill of Rights ("VBR") and implementing legislation. The superior court upheld the cap, citing Lukens and Phillips as requiring a cap as a condition of a knowing and voluntary guilty plea.

¶5 The superior court also directed E.H.’s counsel to sit in the gallery, the space allocated for spectators and members of the public to watch court proceedings. Generally, courtrooms contain a physical barrier, often referred to as the "bar," separating gallery seating from the space at the front of the courtroom before the judge's bench. The space in front of the bar is known as the "well" of the courtroom and is designated for the parties and their lawyers. Here, the superior court advised E.H.’s counsel she was not permitted to sit in the well of the courtroom but should instead sit in the gallery and only step in front of the bar when invited to do so to address an issue relevant to E.H.’s rights.

¶6 E.H. filed a special action challenging both the restitution caps and the requirement that her counsel sit in the gallery. The court of appeals noted that under § 13-603(C), the superior court is required to order the defendants to pay E.H. restitution for the full amount of economic loss proven. But the court declined to accept jurisdiction in the absence of evidence that E.H. was prejudiced by the restitution caps.

¶7 We granted review to address the apparent conflict between a victim's right to restitution and the need for a restitution cap as well as the right of a victim's counsel to sit in the well. Both issues are of statewide importance. We have jurisdiction pursuant to article 6, section 5(3) of the Arizona Constitution. Because this case involves issues of constitutional and statutory interpretation, we review de novo. See Molera v. Reagan , 245 Ariz. 291, 294 ¶ 8, 428 P.3d 490, 493 (2018).

II. DISCUSSION

A. Due Process Does Not Require Restitution Caps.

¶8 Initially, the State argues that E.H.’s case is not ripe for our review, unless and until a restitution claim is denied because of the cap in the plea agreements. We disagree. By entering into agreements that capped the amount of restitution available to E.H., the State and defendants effectively waived E.H.’s statutory right to restitution for her full economic losses. A victim may agree to a restitution cap as part of a plea agreement, and thereby forego her statutory right to full restitution, if that amount exceeds the cap, but the prosecutor may not do it for her. See State v. Warner , 168 Ariz. 261, 264, 812 P.2d 1079, 1082 (App. 1990) ("[W]hile the state has standing to assert a victim's rights, it has no authority to waive those rights." (internal citation omitted)). This improper waiver of E.H.’s individual right is an injury ripe for review. See Brush & Nib Studio, LC v. City of Phoenix , 247 Ariz. 269, 280 ¶ 36, 448 P.3d 890, 901 (2019).

¶9 By entering into a plea agreement, a defendant incriminates himself and waives his constitutional right to trial before a jury or judge. Brady v. United States , 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). Thus, plea agreements must be voluntarily and intelligently made, and a defendant must have "sufficient awareness of the relevant circumstances and likely consequences." Id. Noting these requirements, the Lukens court held that a defendant could not be required to pay restitution in an amount exceeding the statutorily-prescribed monetary limit for a crime unless he knowingly and voluntarily agreed to do so. Lukens , 151 Ariz. at 503, 505, 729 P.2d at 307, 309. The Phillips court agreed and reasoned that a defendant could not have knowingly and voluntarily agreed to pay restitution unless he knew the specific restitution amount or agreed to the maximum amount of restitution that could be imposed under the plea. Phillips , 152 Ariz. at 535 & n.2, 733 P.2d at 1118 & n.2.

¶10 Based on these cases, restitution caps have been included in plea agreements in the belief that they are necessary to protect defendants' due process rights. See State v. Adams , 159 Ariz. 168, 170, 765 P.2d 992, 994 (1988) (" Phillips defines a right under the fourteenth amendment to the United States Constitution."). However, while due process only permits a court to accept a plea if a defendant has voluntarily and intelligently waived his constitutional rights, see Brady , 397 U.S. at 747 n.4, 90 S.Ct. 1463, it does not require a court to inform a defendant of a specific amount of restitution or to cap the amount that may be ordered, see United States v. Ruiz , 536 U.S. 622, 629, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002) ("[T]he law ordinarily considers a waiver knowing, intelligent, and sufficiently aware if the defendant fully understands the nature of the right and how it would likely apply in general in the circumstances—even though the defendant may not know the specific detailed consequences of invoking it."); see also Fed. R. Crim. P. 11(c)(1) advisory committee's note to 1985 amendment (noting there is no requirement to provide a pleading defendant with an exact amount or upper limit of potential restitution). Therefore, because a restitution cap is not constitutionally required under the Fourteenth Amendment, we overrule Lukens , Phillips , and Crowder to the extent they hold that a defendant must be presented with a specific figure or maximum amount of restitution to voluntarily and intelligently enter into a plea agreement.

¶11 Moreover, restitution caps without the victim's consent are ultimately illusory because the State lacks authority to waive a victim's restitution right. And the trial court also lacks authority to enforce a cap because pursuant to § 13-603(C) and A.R.S. § 13-804(B), it must award the victim the amount of proven economic loss. If a victim's restitution does not exceed the cap, the cap is irrelevant; if a victim's restitution does exceed the cap, it cannot be enforced. In addition to violating a victim's restitution right, the inclusion of an unenforceable restitution cap in a plea agreement misleads a defendant in making a knowing and voluntary plea because any agreed upon limit on the amount of restitution is illusory.

¶12 Due process is satisfied when a court gives the defendant notice that it will award restitution proven by a preponderance of evidence in a hearing in which the defendant has the right to be present, be represented by counsel, and challenge any request for restitution. State v. Fancher , 169 Ariz. 266, 268, 818 P.2d 251, 253 (App. 1991) ; see Ariz. R. Crim. P. 17.2(a)(2). The defendant also has the right to seek post-conviction review of that order. Hoffman v. Chandler ex rel. Cty. of Pima , 231 Ariz. 362, 366 ¶ 19, 295 P.3d 939, 943 (2013).

¶13 Generally, the doctrine of stare decisis cautions us against overruling former decisions. Derendal v. Griffith , 209 Ariz. 416, 424 ¶ 33, 104 P.3d 147, 155 (2005). In this instance, however, our decision to overturn the restitution cap requirement set out by Lukens / Phillips / Crowder does not offend the principles underlying stare decisis. The...