State v. Freeman
| Decision Date | 18 March 1993 |
| Docket Number | CA-CR,No. 1,1 |
| Citation | 174 Ariz. 303,848 P.2d 882 |
| Parties | STATE of Arizona, Appellee, v. Charles M. FREEMAN, Appellant. 91-1776. |
| Court | Arizona Court of Appeals |
The issue raised in this appeal is whether the trial court erred by not permitting appellant, Charles Michael Freeman ("defendant"), to keep merchandise that he admitted stealing from various credit merchants, subject to his payment of restitution, if the merchants did not reclaim it. For reasons stated below, we find that the trial court did not err. However, because we find the order of restitution imposed in the plea agreement in this case is improper, for reasons also stated below we vacate that order and remand to the trial court for reimposition of restitution only.
Between October 15, 1990, and May 10, 1991, while incarcerated in a Department of Corrections prison facility in Winslow, Arizona, defendant managed to acquire between eight and ten credit cards or accounts by making fraudulent misrepresentations to various companies including various banks and merchants such as Sears and J.C. Penney's. To obtain the cards, defendant submitted credit applications using his father's name (which differs from his only as to the middle name) and his father's social security number and date of birth. As a mailing address, defendant used only the street address of the prison facility. With the cards or accounts so acquired, defendant then purchased mail-order merchandise, the total property value of which was in the vicinity of $3,500. When confronted in May of 1991 by a Department of Corrections officer investigating his activities, defendant admitted his fraud. Thereafter, defendant was charged by indictment with one count of Theft, a class 3 felony, and one count of Fraudulent Schemes and Artifices, a class 2 felony.
On September 11, 1991, defendant pleaded guilty to one count of Theft, a class 3 felony, non-dangerous and non-repetitive, in exchange for which the state agreed to drop the second count. At the change of plea hearing, on September 11, the trial judge accepted defendant's plea, finding that the plea agreement was entered into knowingly, intelligently and voluntarily and that there was a factual basis for it.
The plea agreement contained no stipulation regarding the sentence to be imposed; however, it did contain the following stipulation regarding restitution:
The state has contacted the victims and upon investigation determines that restitution which is due or owing restitution [sic] shall not exceed $3,800.00.
If any merchandise seized in the investigation is returned to the victim(s), defendant shall be entitled to credit toward restitution in the amount of the value of that merchandise.
At the sentencing hearing on October 7, 1991, the trial court sentenced defendant to the presumptive term of 5 years in the Department of Corrections. The trial court ordered that the sentence run consecutively to the sentence defendant was then serving.
The transcript of the sentencing hearing shows that the following discussions took place regarding restitution. In addressing the trial court regarding the appropriate sentence to be imposed, defense counsel prefaced his remarks by stating:
The Court will note from the plea agreement that if [the companies] will take the merchandise back that Mr. Freeman is entitled to credit. If they will not take the merchandise back, then he is going to have to pay for the merchandise and he should be entitled to the merchandise.
* * * * * *
Mr. Freeman would like to have the merchandise because he ordered it for family purposes. He would like to have the opportunity to continue to pay on the accounts ...
On the other hand, if he is not allowed that freedom, then that merchandise should go back. Some of it I am told is in the original boxes sitting in storage at the Department of Corrections and it should be returned to the merchants for credit on the accounts.
Prior to the trial court's imposing sentence, the county attorney explained that, after entry of the plea agreement, his office had sent letters to each of the victims identified in the presentence report advising them of defendant's plea, the time and date of sentencing and the amount of restitution his office had identified as owing to them. According to the county attorney, these letters also advised each company as follows:
Please note that you may have returned to you any merchandise which our investigation recovered, but restitution will be reduced by the current value of any merchandise returned to you. You must advise our office if you wish to have any merchandise returned to you in lieu of an order of restitution for the sale cost of the items.
The county attorney informed the trial court that his office had not received responses from any of the victims asking that the merchandise be returned to them and that he therefore "presumed" that all of them preferred an order of restitution to return of the actual items and that that was "probably related to depreciation in the property." To this the trial court replied, "I guess they have that choice."
The trial court then pronounced sentence and ordered defendant to pay restitution in the amount of $3,529.13, after which the following exchange took place between defense counsel and the trial court:
The sentencing order contained in the trial court's minute entry of October 7, 1991, made no reference to the stipulation regarding restitution included in the plea agreement and discussed at the sentencing hearing, except to note that restitution in the total amount of $3,529.13 was ordered.
On October 11, 1991, defendant filed a Motion to Clarify, Or, In the Alternative, to Reconsider Sentencing Order in which the defendant contested the trial court's decision to deny his requests to keep the merchandise. The thrust of defendant's motion was that any goods not claimed by the various merchants should be delivered to him upon his payment of restitution. However, defendant also argued that "a reasonable alternative to the present Order would be to apply the procedure of A.R.S. sec. 13-3941 so as to notify the victims to claim their property, thereby allowing Defendant credit against the restitution amount for all the property now held that is capable of being returned to the victim." Defendant claimed that "[s]uch was the intention of the parties hereto as stated in the Plea Agreement."
On October 28, 1991, the trial court issued a Minute Entry Order in which it added the following language to its Sentencing Order of October 7, 1991:
If none of the victims indicates willingness to accept return of property, the ASPC-Winslow shall give the property to the Red Cross.
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...modify their own judgments and orders. Skinner v. Superior Court, 106 Ariz. 287, 288, 475 P.2d 271, 272 (1970); State v. Freeman, 174 Ariz. 303, 305, 848 P.2d 882, 884 (App.1993). Because the judge made no additional findings but merely explained the reasons for a few of his previous findin......
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