State v. O'Connor
| Decision Date | 02 July 1985 |
| Docket Number | CA-CR |
| Citation | 146 Ariz. 16,703 P.2d 563 |
| Parties | STATE of Arizona, Appellee, v. Paul Cecil O'CONNOR, Appellant. 18208. |
| Court | Arizona Court of Appeals |
The appellant, Paul Cecil O'Connor (defendant), was charged by indictment with Count I, burglary in the first degree, a class 2 dangerous felony committed with an accomplice; and Count II, theft, a class 3 felony. The defendant entered into a written plea agreement in which he agreed to plead guilty to Count II, theft, a class 3 felony. The plea agreement stipulated as follows:
The defendant will receive a sentence of 7.5 years prison consistent with the following additional terms: Defendant to be sentenced as non-dangerous, non-repetitive offender. Defendant to cooperate fully with law enforcement officials in attempting to locate the stolen property.
The state, in exchange for the plea, agreed to dismiss Count I. Additionally the state did not file an allegation of prior conviction although the defendant had previously been convicted of second degree murder. However, the prior conviction was used as the aggravating circumstance to justify the increased sentence of 7.5 years in prison. Following a restitution hearing the defendant was sentenced to 7.5 years in prison and restitution was ordered in the amount of $4,150.
The defendant appeals challenging only the order of restitution. On appeal he raises the issue of whether the restitution was properly imposed and, if so, whether the amount was excessive. The defendant first argues that the imposition of any restitution was improper because it was contrary to the stipulated plea agreement. At the time of the change of plea the court advised the defendant as follows:
THE COURT: You are entering into a plea agreement and are agreeing to plead "guilty" to Count II, Theft, a Class 3, as set forth in the indictment. In exchange for your plea agreement you would receive a sentence of 7.5 years in prison. You would be sentenced as a non-dangerous, non-repetitive offender. You would cooperate fully with law enforcement officials in attempting to locate the stolen property. Count I would be dismissed.
Is that your understanding of the plea agreement you are making, Mr. O'Connor?
THE DEFENDANT: Yes, sir.
At the change of plea hearing there was no mention of restitution by either the court, the prosecution or the defendant. The court said:
You are pleading to Count II of the indictment. It says that on or about the 15th of December, 1983, in the vicinity of 264 Marina Boulevard in Riveria, Mohave County, Arizona, that you controlled the property of a Benny Neal Roseberry, having a value of a thousand dollars or more.
What happened?
THE DEFENDANT: I took his truck, and I had to make my way to Texas, pick up my boat. That's as far as that went--is I took the truck.
Later in the same hearing the defendant said:
Because all I'm copping to is I took the truck and I readily admit it, that I took the truck, but that's as far as that goes.
The prosecutor then explained the basis of the burglary charge which was dismissed. The burglary count was also filed against two accomplices who took property from a house which the defendant shared with the victim and placed it in the victim's pickup truck. The prosecutor then stated: "The combined value of the property was approximately $4,537, but the vehicle itself was a '77 Ford pickup with wide tires, a sun roof, and the victim estimated that was worth at least a thousand dollars." The court asked whether the truck was recovered and was told by both the defendant and the prosecutor that the truck had been recovered.
At the time set for sentencing the defendant discovered that the presentence report not only recommended that he receive the stipulated sentence of 7.5 years in prison but that he pay restitution in the form of a fine in the amount of $6,850. The defendant objected to this amount and the court continued the matter for a restitution hearing. At the time set for the restitution hearing the court asked whether the restitution matter had been resolved. The defendant's attorney answered: A restitution hearing followed at which numerous witnesses testified. The testimony concerned guns and various other items which made up Count I of the original indictment--the count that the state had agreed to dismiss. The court then proceeded to sentence the defendant to 7.5 years in prison with credit for presentence incarceration time plus $4,150 as restitution.
We have determined that restitution was contrary to the written plea agreement. We are dismayed that counsel has filed an opening brief raising valid issues on...
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State v. Doe, 27967.
...failed to mention restitution contained implied term that government would not request order of restitution); State v. O'Connor, 146 Ariz. 16, 703 P.2d 563, 565-66 (Ct.App.1985) (holding that prosecutor breached plea agreement by seeking order of restitution where neither plea agreement nor......
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Hoffman v. Chandler
...restitution orders on appeal. See, e.g., State v. Nosie, 150 Ariz. 498, 499, 724 P.2d 584, 585 (App.1986); State v. O'Connor, 146 Ariz. 16, 17, 703 P.2d 563, 564 (App.1985). Although the legislature was presumably aware of such appeals when it sought to reduce the burden on appellate courts......
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