State v. Hawkins

• Decision Date: 12 November 1982
• Docket Number: No. 1,CA-CR,1
• Citation: 134 Ariz. 403,656 P.2d 1264
• Parties: STATE of Arizona, Appellee, v. Bruce Allen HAWKINS, Appellant. 5316.
• Court: Arizona Court of Appeals

Page 1264

656 P.2d 1264

134 Ariz. 403

STATE of Arizona, Appellee, v. Bruce Allen HAWKINS, Appellant.

No. 1 CA-CR 5316.

Court of Appeals of Arizona,

Division 1, Department D.

Nov. 12, 1982.

Rehearing Denied Dec. 14, 1982.

Review Denied Jan. 11, 1983.

Robert K. Corbin, Atty. Gen., by William J. Schafer, III, Chief Counsel, Crim. Div., and Barbara A. Jarrett, Asst. Atty. Gen., Phoenix, for appellee.

Ross P. Lee, Maricopa County Public Defender by H. Allen Gerhardt, Deputy Public Defender, Phoenix, for appellant.

OPINION

MEYERSON, Judge.

This appeal has been filed in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In the opening brief, counsel for appellant raised a material issue and, pursuant to this court's order, the state has filed an answering brief. Appellant has been offered an opportunity to file a brief in propria persona, but has not done so.

On March 17, 1981, appellant entered a plea of guilty to theft, a class 4 felony, pursuant to a plea agreement. The information charged appellant with stealing, among other things, two sets of sterling silverware from Lyal Millett on or about February 6, 1981. Appellant was placed on four years probation; one of the terms of probation required appellant to make restitution for the silverware in the total amount of $12,792 to be paid at the rate of $250 per month. ¹

Appellant contends that the trial court erred by ordering restitution in the amount of $12,792, which is substantially more than the $1,049.48 recommended by the probation officer in the pre-sentence report. Appellant maintains that (1) insufficient evidence was established to support restitution in the higher amount and (2) the trial court erred by failing to consider his economic circumstances with respect to his ability to repay $12,792 in payments of $250 per month. The state responds that the amount of the loss was contained in the pre-sentence report and therefore sufficient evidence to support a finding of the amount of restitution existed without a hearing under A.R.S. § 13-901.H. In any event, the state contends appellant waived his right to object to the restitution order because he did not dispute it at the time of sentencing.

Appellant's plea agreement was accepted by the court commissioner on March 17, 1981. The plea agreement provided, among other things, that "[r]estitution will be made to the victim in an amount to be determined by the probation department." ² The pre-sentence investigation was prepared and delivered to the sentencing judge on April 9, 1981. In the pre-sentence report, it was recommended that appellant be placed on probation and that he "make and pay restitution ... in the total amount of $1,049.48 in regular monthly payments of $30.00 ...." The pre-sentence report also noted that the victim had priced the stolen silverware at various department stores and reported to the probation department that the replacement cost was $12,792.

Appellant's sentencing ³ was held on April 14, 1981. The judgment and order suspending sentence and imposing terms of probation was prepared for the judge's signature and originally provided that restitution was to be paid in the amount of $1,049.48 as recommended by the probation department. That amount was crossed out and $12,792 substituted ($250 per month was also substituted for the recommended $30 per month) and initialed by the judge. Appellant's counsel questioned the amount, apparently recalling that the probation department's recommendation was different. The judge replied: "That's incorrect. That's the amount the insurance company paid to the victims. The victims' total loss was $12,792. You'll find it in the presentence report." Appellant made no objection. For the reasons set forth below, we hold that because the terms of the plea agreement were not followed by the trial judge, appellant should have been given an opportunity to withdraw his plea. Further, should appellant again be ordered to make restitution, we instruct the trial judge to consider whether appellant has the economic ability to pay the amount of restitution ordered.

Appellant's plea agreement provided that he agreed to pay restitution in an amount to be recommended by the probation department. The trial judge ignored the plea agreement and substituted a different amount in her order. Where a plea agreement or a provision of the agreement is rejected by the trial court, it is obliged to give the defendant an opportunity to withdraw the plea. Rule 17.4, Ariz.R.Crim.P. The rejection of a provision of the plea agreement gives rise to a mandatory duty to grant the defendant an opportunity to withdraw his plea; the duties imposed by this rule "are affirmative duties placed upon the court and cannot be waived by a defendant simply failing to withdraw his plea." State v. Soto, 126 Ariz. 477, 480, 616 P.2d 937, 940 (Ct.App.1980).

Because restitution may likely be ordered again on remand we turn to appellant's contention that the trial judge did not ascertain his ability to make restitution as provided for in A.R.S. § 13-603.C. That statute provides as follows:

If the court imposes probation it ... shall require the convicted person to make restitution to the victim of the crime in such amount and manner as the court may order, after consideration of the economic loss to the victim and economic circumstances of the convicted person.

We hold that A.R.S. § 13-603.C. requires the trial judge to consider a defendant's ability to pay whenever restitution is ordered.

Our review of similar statutes in other jurisdictions, as interpreted by their respective appellate courts, confirms that in setting restitution the sentencing judge must determine the defendant's economic ability to pay. E.g., Peterson v. State, 384 So.2d 965 (Fla.App.1980) (restitution order reversed because the trial court did not determine "that appellant has the ability to make the payments required of him as part of his probationary condition."); Commonwealth v. Wood, 300 Pa.Super. 463, 446 A.2d 948, 949-50 (1982) (sentencing court must consider whether the amount of restitution exceeds the defendant's ability to pay); State v. Pope, 107 Wis.2d 726, 321 N.W.2d 359, 362 (1982) (order granting restitution reversed because there was "no evidence ... demonstrating that the trial court considered" the defendant's financial resources or future ability to pay).

The law in this area has been summarized as follows:

[I]t is generally held that regardless of whether restitution provisions are governed by a jurisdiction's particular statute, the sentencing court may not condition probation upon the payment of restitution without first assessing the offender's financial capabilities.

A. Campbell, Law of Sentencing § 23 (1978). See American Bar Association, Standards for Criminal Justice § 18-2.3(e)(i) (2d. ed. 1980); Model Penal Code § 301.1(2)(h) (1974).

Consideration of the defendant's ability to pay restitution is sound penology. Requiring the payment of restitution has both rehabilitative and punitive purposes. ⁴ Rule 27.1, Ariz.R.Crim.P.; see A.R.S. § 13-101. Most courts recognize that the rehabilitative purpose cannot be achieved if restitution is set in an amount beyond the defendant's ability to pay. Nothing can be more destructive of the salutary purpose of restitution than to build into the terms of probation a self-defeating provision. The true rehabilitative purpose of restitution is well served when a probationer or parolee is called upon to make reasonable sacrifices in order to compensate those who have sustained losses as a result of his criminal conduct. The rehabilitative goal is defeated only when the payments ordered by the court are so unreasonable in view of the defendant's financial circumstances and ability to work that, despite good-faith...