State of Ariz. v. UNKEFER

• Decision Date: 21 September 2010
• Docket Number: No. 1 CA-CR 09-0750.,1 CA-CR 09-0750.
• Citation: 239 P.3d 749,225 Ariz. 430
• Parties: STATE of Arizona, Appellee, v. Sherman E. UNKEFER, Appellant.
• Court: Arizona Court of Appeals

225 Ariz. 430

239 P.3d 749

STATE of Arizona, Appellee v Sherman E. UNKEFER, Appellant.

No. 1 CA-CR 09-0750.

Court of Appeals of Arizona,Division 1, Department C.

Sept. 21, 2010.

Richard M. Romley, Acting Maricopa County Attorney and Davina Bressler, Deputy County Attorney, Phoenix, Attorneys for Appellee.

Perkins, Coie, Brown & Bain PA By M. Bridget Minder and Joel W. Nomkin and

Lee D. Stein, Phoenix, Attorneys for Appellant.

OPINION

NORRIS, Judge.

¶ 1 Sherman E. Unkefer appeals the superior court's denial of his motion to vacate a criminal restitution order (“CRO”) entered by the court 12 years after he had completed his prison sentence. On appeal, he argues the 12-year delay by itself violated Arizona Revised Statutes (“A.R.S.”) section 13-805 (2010). As relevant here, this statute states a CRO “shall” be entered “at the time” the defendant completes his or her period of probation or sentence (collectively, “criminal sentence”). In State v. Pinto, 179 Ariz. 593, 596, 880 P.2d 1139, 1142 (App.1994), we held this language was “advisory,” not jurisdictional, and a trial court could consider a petition for entry of what was then called a civil judgment if “filed within a reasonable time” after the defendant had completed his or her criminal sentence. Applying our holding in Pinto, we reject Unkefer's argument the 12-year gap by itself barred the court from entering the CRO. We nevertheless vacate the superior court's denial of his motion because the court did not consider whether, in light of the purpose of restitution, the legislature's intent in enacting A.R.S. § 13-805, and the circumstances of this case, the 12-year delay was reasonable.

FACTS AND PROCEDURAL HISTORY

¶ 2 Unkefer was the founder, president, chief executive officer, chairman of the board of directors, and largest shareholder of North American Coin and Currency (“NAC”), a buyer and seller of precious metals. The State indicted Unkefer on October 23, 1986, on seven counts of fraudulent schemes and artifices, a class 2 felony; one count of attempted fraudulent schemes and artifices, a class 3 felony; and two counts of theft, a class 3 felony. The charges stemmed from Unkefer's trading activities on behalf of NAC from January 1980 to September 1982. Pursuant to a plea agreement, on July 25, 1988, Unkefer pled guilty to one count of fraudulent schemes and artifices.

¶ 3 The plea agreement capped the amount of restitution Unkefer could be ordered to pay at $7.5 million and entitled him to “an offset of the restitution amount for funds collected to date and any collected in the future from third parties.” During the change of plea hearing, the superior court told Unkefer he would need to make an “affirmative request” to receive offsets and offsets would not be “automatic.” Unkefer's attorney agreed, confirming Unkefer would have to provide “appropriate documentation and motions and proof to the Court's satisfaction that funds had been collected.”

¶ 4 On November 18, 1988, the superior court sentenced Unkefer to ten years in prison. On June 20, 1989, without objection by Unkefer, the court ordered him to pay $7.5 million in restitution “as stated in the plea agreement.” Unkefer was released from prison on May 15, 1996.

¶ 5 From 1996 to 2008, the case was largely dormant. On November 18, 2008, 12 years after Unkefer completed his prison sentence and 20 years to the day after the superior court sentenced Unkefer to prison, a superior court commissioner entered a $7,498,530 CRO against Unkefer. ¹

¶ 6 Unkefer eventually learned of the CRO and moved to vacate it, asserting the 12-year delay by itself rendered the CRO untimely under A.R.S. § 13-805 ² and Pinto. In response,the State argued that because crime victims are entitled to restitution under Arizona law and the legislature enacted A.R.S. § 13-805 to assist victims in recovering restitution, the delay was immaterial. After briefing, the superior court denied the motion to vacate. ³ It held “the ‘reasonable time’ language in Pinto-like the language of the statute itself concerning timing of the criminal restitution order-is precatory. It is dictum that this Court has no authority to enforce.” The court also held Unkefer bore the burden of proving any offsets because he had agreed to do so at the change of plea hearing. See supra ¶ 3. Unkefer timely appealed. We have jurisdiction pursuant to A.R.S. § 13-4033(A)(3) (2010). ⁴

DISCUSSION

I. Section 13-805 and Pinto

¶ 7 On appeal Unkefer argues the superior court should have vacated the CRO because the 12-year delay by itself violated A.R.S. § 13-805 and Pinto's standard of reasonableness. ⁵ We reject this argument as it focuses only on time and grants no importance to any consequences caused by the passage of time. Further, as we held in Pinto, the “at the time” language is advisory, not jurisdictional, and a trial court's failure to enter a CRO “at the time” a defendant completes his or her criminal sentence does not, by itself, invalidate a subsequently entered CRO.

¶ 8 As noted above, A.R.S. § 13-805 states a court “shall” enter a CRO “at the time” a defendant completes his or her criminal sentence. We were called to interpret this language in Pinto.

¶ 9 There, four defendants were each found guilty of a criminal offense, placed on probation, and ordered to pay restitution. Pinto, 179 Ariz. at 595, 880 P.2d at 1141. Under the predecessor version of the current statute, the trial court entered what was then known as a “civil judgment” after each defendant's term of probation had expired. Id. After examining the statutory language and the legislature's intent in enacting the statute-“to prescribe a procedure by which [crime] victims would receive their restitution at the earliest possible opportunity”-we rejected the defendants' argument the trial court had lost jurisdiction to enter the judgments. Id. at 595-96, 880 P.2d at 1141-42. We held the “at the time” wording was not jurisdictional but “advisory as to when the trial court is to act” and a trial court could consider a petition for entry of a civil judgment filed “within a reasonable time after” completion of the period of probation. Id. at 596, 880 P.2d at 1142. Although we declined to determine the “exact boundaries of reasonableness” under A.R.S. § 13-805 for entry of a civil judgment, we stated our “opinion ... should not be taken as a license for indiscriminate or egregious delay” and instructed petitions requesting civil judgments should be filed with the trial court “at the earliest possible opportunity.” ⁶ Id. ¶ 10 Here, contrary to Pinto's instruction, the superior court was not asked to, nor did it, enter the CRO at the “earliest possible opportunity.” Unkefer was rightly troubled by the 12-year delay, and so are we. But having said this, we nevertheless disagree with Unkefer the 12-year delay constituted a per se violation of A.R.S. § 13-805 as construed in Pinto. Unkefer's per se argument is simply another way of asserting the wording of A.R.S. § 13-805 should be strictly construed as depriving the court of “jurisdiction” to enter a CRO after a defendant has completed his or her criminal sentence. Although a 12-year delay is worse than, say, a one-year delay, entry of a CRO in either case violates the statutory language. The hard issue presented in either case is whether violation of the statutory deadline bars entry of or invalidates a CRO; the length of the delay vis-à-vis this issue is not dispositive.

¶ 11 Like other statutes, A.R.S. § 13-805 states a time for the performance of an official duty (entry of a CRO) but fails to specify any consequence if that duty is not timely performed. Whether the legislature intended the language of such a statute to be mandatory or “directory,” that is, giving “mere direction or instruction of no obligatory force, and involving no invalidating consequence for its disregard” presents an issue of statutory construction. Dep't of Revenue v. S. Union Gas Co., 119 Ariz. 512, 514, 582 P.2d 158, 160 (1978) (quoting Black's Law Dictionary 547 (4th ed.1968)); see also Way v. State, 205 Ariz. 149, 152-54, ¶¶ 9-15, 67 P.3d 1232, 1235-37 (App.2003) (finding statute directory and failure of police to follow it did not defeat jurisdiction). To decide this issue, a court has to consider the effect and consequences of alternative constructions. S. Union Gas Co., 119 Ariz. at 514, 582 P.2d at 160. “Language, mandatory in form, may be deemed directory when the legislative purpose can best be carried out by such construction.” Id.; see also Verma v. Stuhr, 223 Ariz. 144, 153, ¶ 35, 221 P.3d 23, 32 (App.2009) (same).

¶ 12 In Pinto, we essentially followed this approach in interpreting the “at the time” wording and holding it was advisory and not jurisdictional. Accordingly, non-compliance with the “at the time” language of A.R.S. § 13-805, whether 12 years or one year, does not by itself bar entry of or invalidate an otherwise proper CRO.

¶ 13 Unkefer's per se argument also flies in the face of the “reasonable time” test we established in Pinto. In differing contexts, the law measures the legitimacy or propriety of an act by assessing its reasonableness. ⁷ Making this call requires the exercise of judgment informed by facts. Assessing reasonableness by only counting years, months, or days (which is the only factor Unkefer suggests) without considering all other relevant circumstances would not lead to informed decision making. Moreover, assessing reasonableness by looking at only one factor, time, and not at any consequences caused by the passage of time, see infra ¶ 17, would turn the reasonableness standard we established in Pinto into a straitjacket.

¶ 14 This does not mean, as the State argues, a trial court can enter a CRO at any time, regardless of delay. ⁸ Although the legislature enacted A.R.S. § 13-805 to help crime victims recover restitution, the “at thetime” language has meaning and force. As our supreme court has...