State v. Crowder, CR-86-0380-AP

• Decision Date: 04 December 1987
• Docket Number: No. CR-86-0380-AP,CR-86-0380-AP
• Citation: 747 P.2d 1176,155 Ariz. 477
• Parties: STATE of Arizona, Appellee, v. Herman CROWDER, Jr., Appellant.
• Court: Arizona Supreme Court

Page 1176

747 P.2d 1176

155 Ariz. 477

STATE of Arizona, Appellee, v. Herman CROWDER, Jr., Appellant.

No. CR-86-0380-AP.

Supreme Court of Arizona, In Banc.

Dec. 4, 1987.

Robert K. Corbin, Atty. Gen. by William J. Schafer, III, Vicki Gotkin Adler, Asst. Attys. Gen., Phoenix, for appellee.

Ross P. Lee (former), Dean W. Trebesch (current), Maricopa County Public Defender by Spencer D. Heffel, Deputy Public Defender, Phoenix, for appellant.

FELDMAN, Vice Chief Justice.

Herman Crowder, Jr. pleaded guilty to the crimes of first degree murder, armed robbery, and first degree burglary. The plea agreement form he signed contained a printed provision regarding restitution. Pursuant to the plea agreement, the trial court sentenced Crowder to consecutive terms of life imprisonment on the murder count and twenty-one years on each of the other counts. In addition, the court ordered him to pay restitution in the amount of $37,000. He now seeks to withdraw from his plea agreement on the ground that it was not voluntarily made because he was unaware of the amount of restitution he might be ordered to pay. He appeals directly to this court pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. § 13-4031 (Supp.1986).

I. FACTS

The victims, a Mesa couple, returned home on the evening of February 24, 1985 to find a burglary in progress. Before the intruder left the home, he shot and killed one of the victims with a .22-caliber handgun and sexually assaulted and beat the other. He took approximately $200 in cash, plus jewelry and credit cards.

Subsequently identified as the assailant, Crowder was arrested and charged with first degree murder, aggravated assault, armed robbery, first degree burglary, and sexual assault. On June 24, 1986, a plea agreement was reached, permitting Crowder to plead guilty to first degree murder, armed robbery, and first degree burglary in consideration for the state's promise not to seek the death penalty. The counts for aggravated assault and sexual assault were to be dismissed, and there was no agreement on the sentences for the remaining counts. The form agreement Crowder signed stated that a fine could be imposed and that "[r]estitution of economic loss to the victim ... will be required."

At the change of plea proceedings the same day, the trial judge explored the voluntariness of Crowder's plea. He fully questioned defendant about his understanding of the range of sentences for each of the counts to which he was about to plead guilty, and discussed the imposition of a fine as high as $150,000, with a thirty-seven percent surcharge per count. Regarding restitution, however, the court asked only:

And do you further understand that the law--the Court can require that you make restitution for any economic loss your victim may have suffered? ¹

Reporter's Transcript, June 24, 1986, at 5. Crowder indicated his assent, and the court accepted his guilty pleas.

The presentence report that followed calculated the surviving victim's economic loss at "approximately $37,000." Indeed, the computation was approximate. See Photostated Instruments of ord on Appeal, at 100(i). At the sentencing hearing on December 4, 1986, the court sentenced Crowder on the murder count to life imprisonment without possibility of parole for twenty-five years. On both the armed robbery and burglary counts, the court sentenced him to terms of twenty-one years, each to run consecutively to the life term and to each other. In addition, the court ordered him to pay restitution in the amount of $37,000 pursuant to A.R.S. § 13-603(C) (Supp.1986). This appeal followed.

II. DISCUSSION

A. Issues and Procedure

Crowder maintains that his guilty plea was not intelligently made because he was not advised how much restitution he would have to pay. He relies on State v Phillips, 152 Ariz. 533, 733 P.2d 1116 (1987), which this court decided on February 26, 1987. Because Crowder's appeal was pending on that date, his invocation of Phillips is not erroneous. ² See State v. LeMaster, 137 Ariz. 159, 669 P.2d 592 (App.1983).

We note that Crowder has not followed proper procedure. He now seeks to withdraw his plea of guilty and have the judgment of guilt vacated, all on the basis of unconstitutionality and the change in law wrought by Phillips. The proper procedure would have been to submit the matter to the trial judge by petition for post-conviction relief. See Rule 32.1(a) and (g), Ariz.R.Crim.P., 17 A.R.S. Rather than follow that procedure, Crowder simply raised the validity of the plea agreement in his appeal brief. Ordinarily we would not take cognizance of an issue raised for the first time on appeal and would leave defendant to make the proper motion before the trial court. We recognize, however, that the instant appeal was pending when Phillips was decided. It is obvious that if the matter were resubmitted to the trial judge, Phillips would require that defendant's motion be granted, leaving the state to appeal. Because Phillips requires clarification, and in this case the issue is one that only this court can decide, in the interests of judicial economy we turn to the merits of the case.

B. Was Defendant's Plea Knowing?

In Phillips, the defendant pleaded guilty to the offense of leaving the scene of an accident involving personal injury. Like Crowder, he had entered into a plea agreement requiring restitution of economic loss to the victim. Whereas Crowder's written plea agreement was silent on the amount, Phillips's stated, "amount of $ to be determined." 152 Ariz. at 534, 733 P.2d at 1117. Like Crowder, Phillips was advised at the change of plea proceedings that the court would order restitution, but he was not told the amount. Not until his sentencing hearing did Phillips, like Crowder, learn the precise amount of restitution he was to pay.

Vacating the judgment and sentence, this court held in Phillips that

a defendant [cannot] "thoroughly understand" the consequences of his agreement to make restitution if he is unaware of the restitutionary amount that can be imposed. Knowledge that restitution can be ordered for the victim's "full economic loss" is insufficient.

... [W]e will conclude that appellant thoroughly understood the consequences of his agreement to pay restitution only if the record contains at least one of the following: (1) a statement in the plea agreement setting forth a specific dollar amount of restitution; (2) a statement by the defendant indicating agreement to pay a specific dollar amount of restitution; or (3) a warning by the trial judge prior to accepting the defendant's plea that he can order restitution of a specific dollar amount.

Id. at 535, 733 P.2d at 1118 (emphasis added). This defendant's record, like Phillips's, contains no indication of a "thorough understanding" of the amount of restitution and thus compels the conclusion that defendant's "agreement to make restitution" was involuntary because unknowingly made.

Of course, the word "record" is not limited to the formal record of the change of plea proceedings. When the defendant claims his plea was unknowing and therefore involuntary, the question is not simply what the defendant was told in court but what he knew from any source. Thus, for example, if defense counsel had learned from any source that the economic loss was in the range of $30,000 to $40,000 and had somehow informed defendant that restitution would be required in such an amount, the change of plea would have been knowing even though the same information was not imparted by the trial judge at the formal proceedings. State v. Levario, 118 Ariz. 426, 577 P.2d 712 (1978) (extended record must be examined with regard to defendant's knowledge of special sentencing conditions); State v. Ellis, 117 Ariz. 329, 572 P.2d 791 (1977) (dealing with nature of charge and range of possible sentence). Similarly, where defendant pleads to a crime which has statutorily prescribed monetary parameters, defendant would necessarily have reason to expect the amount of restitution to be within those parameters. See, e.g., A.R.S. § 13-1802(C); cf. State v. Lukens, 151 Ariz. 502, 729 P.2d 306 (1986).

Because of the procedural posture of this case, there has been no inquiry into the extended record. However, the state maintains that defendant had adequate knowledge of his potential monetary liability because in both the plea agreement and the change of plea proceedings the maximum fine of $150,000, plus thirty-seven percent surcharge per count, was expressly set forth. We rejected such a suggestion in Lukens, supra. In this pre-Phillips case, we held that "a defendant cannot be required to pay restitution in an amount exceeding statutorily-prescribed monetary parameters of the crime to which he pleads guilty unless he voluntarily and intelligently agrees to pay a higher amount." Id. at 505, 729 P.2d at 309. We vacated the judgment and sentence that included restitution of $9,132.65 despite the fact that Lukens was fully informed of the possibility of a fine as high as $150,000 plus thirty-seven percent surcharge. Id. at 503, 729 P.2d at 307.

On this record, therefore, under Lukens and Phillips, defendant's agreement to pay restitution was not voluntary because he had no prior knowledge of the amount. The issue we face, then, is not whether the restitution agreement was voluntary, but whether Crowder's lack of knowledge of the amount of restitution rendered the entire plea agreement involuntary.

C. Voluntariness of Plea Agreement as a Whole

This case presents questions somewhat different from Lukens and Phillips. The issue in those cases was whether not knowing the amount of restitution they would have to pay made defendants' plea agreements involuntary. We held that it did, but Lukens and Phillips presented fairly extraordinary circumstances. Lukens, who had benefitted no more than $100 from her crime and who was quite likely to be placed on probation, found herself confronting a restitution...