State v. Reed

• Decision Date: 01 February 2022
• Docket Number: CR-20-0385-PR
• Citation: 63 Arizona Cases Digest 11,502 P.3d 979
• Parties: STATE of Arizona, Appellee, v. Richard Allen REED, Appellant.
• Court: Arizona Supreme Court

63 Arizona Cases Digest 11

502 P.3d 979

STATE of Arizona, Appellee,

v.Richard Allen REED, Appellant.

No. CR-20-0385-PR

Supreme Court of Arizona.

Filed February 1, 2022

Mark Brnovich, Arizona Attorney General, Brunn (Beau) Roysden III, Solicitor General, Linley Wilson, Deputy Solicitor General/Section Chief Counsel of Criminal Appeals, Jillian B. Francis(argued), Assistant Attorney General, Phoenix, Attorneys for State of Arizona

James Haas, Maricopa County Public Defender, Kevin D. Heade(argued) Deputy Public Defender, Phoenix, Attorneys for Richard Allen Reed

Randall S. Udelman(argued), Arizona Crime Victim Rights Law Group, Scottsdale, Attorneys for Victim C.C.

Colleen Clase, Arizona Voice for Crime Victims, Inc., Phoenix, Attorneys for Amicus Curiae Arizona Voice for Crime Victims, Inc.

David J. Euchner, Pima County Public Defender's Office, Tucson, Attorneys for Amicus Curiae Arizona Attorneys for Criminal Justice

M. Alex Harris, M. Alex Harris, P.C., Chino Valley, Attorney for IntervenorLanna Mesenbrink

VICE CHIEF JUSTICE TIMMERauthored the opinion of the Court, in which CHIEF JUSTICE BRUTINEL, and JUSTICES BOLICK, LOPEZ, BEENE, KING, and PELANDER (RETIRED) joined.^*

VICE CHIEF JUSTICE TIMMER, opinion of the Court:

¶1Richard Allen Reed used a mirror to look beneath the door of a bathroom being used by C.C.A jury convicted Reed on one count of voyeurism, a class 5 felony, in violation of A.R.S. § 13-1424.The trial court awarded restitution to C.C., including attorney fees she had incurred in retaining an attorney to represent her in the criminal proceedings.

¶2This case requires us to decide whether a victim's attorney fees are recoverable as criminal restitution and, if so, to what extent.We conclude such fees are recoverable but only when an attorney is reasonably necessary to remedy the harm caused by the criminal conduct.Here, most or possibly all of C.C.’s fees do not fall within this category and therefore are not recoverable as criminal restitution.

BACKGROUND

¶3 C.C. hired the Gust Rosenfeld law firm to assist her in determining and enforcing her rights as a crime victim.To that end, attorney Craig Keller, who primarily represented C.C., actively participated in Reed's criminal case.Among other things, Keller served as a go-between for C.C., the prosecutor, and C.C.’s crime victim advocate; analyzed court filings, like disclosure statements and witness lists; examined and commented on a proposed plea deal; met with the prosecutor to strategize and prepare for trial; attended a two-day trial; and drafted a motion for restitution, which the State apparently filed.Gust Rosenfeld billed C.C. $17,909.50 for time incurred by Keller (36.3 hours), an associate attorney (1.3 hours), and a paralegal (19 hours).

¶4 A jury convicted Reed as charged, and the court of appeals affirmed.See State v. Reed(Reed III ), 248 Ariz. 72, 74 ¶ 3, 456 P.3d 453, 455(2020).Thereafter, the trial court conducted a restitution hearing, in which Keller, not the prosecutor, presented the case"[w]ith respect to the State's position."The parties stipulated that C.C. was entitled to $3,083.61 for mental health counseling sessions she underwent because of Reed's voyeurism and an additional $40 in costs for obtaining a protective order.The court disallowed C.C.’s requests for moving expenses and lost wages as unproven.As relevant here, the court ordered payment of $17,909.50 as restitution for Gust Rosenfeld's attorney fees.

¶5 Reed died pending his appeal from the criminal restitution order.Reed III , 248 Ariz. at 74 ¶ 1, 456 P.3d at 455.The court of appeals dismissed the appeal, but we vacated that decision and remanded for that court to decide whether the restitution amount was correct.Id. at 74 ¶ 1,81 ¶¶ 33–34, 456 P.3d at 455.Thereafter, the court permitted Reed's wife, Lanna Mesenbrink, to intervene and file a supplemental brief.See State v. Reed(Reed IV ), 250 Ariz. 599, 601 ¶ 2, 483 P.3d 221, 223(App.2020).The court ultimately affirmed the restitution order.Id.

¶6 Reed's counsel and Mesenbrink petitioned this Court for review.We granted review because whether and to what extent a victim's attorney fees are recoverable as criminal restitution is a recurring issue of statewide importance.

DISCUSSION

I.

¶7 The Victims’ Bill of Rights enshrined in our state constitution guarantees crime victims "prompt restitution from the person or persons convicted of the criminal conduct that caused the victim's loss or injury."Ariz. Const. art. 2, § 2.1 (A)(8).This guarantee includes a right to full restitution.See State v. Patel , 251 Ariz. 131, 133 ¶ 2, 486 P.3d 188, 190(2021).The issue here involves the scope of "restitution."

¶8We do not write on a blank slate.In State v. Wilkinson , 202 Ariz. 27, 28–29 ¶¶ 1, 6–7, 39 P.3d 1131, 1132-33(2002), this Court examined statutes implementing victims’ constitutional guarantee for restitution to decide whether and to what extent a court could order restitution for victims of an unlicensed contractor who performed incomplete and faulty home remodeling work.The Court cited A.R.S. § 13-603(C), which requires restitution "in the full amount of the economic loss" suffered by the victim, and then quoted what is now A.R.S. § 13-105(16), which defines "economic loss" as "losses which would not have been incurred but for the offense," excepting "damages for pain and suffering, punitive damages [and] consequential damages."Wilkinson , 202 Ariz. at 28–29 ¶ 6, 39 P.3d at 1132-33.

¶9 Considering these statutes, the Court concluded restitution should be ordered for losses that (1) are economic; (2) would not have been incurred by the victim but for the criminal offense; and (3) were directly caused by the criminal conduct.Id. at 29 ¶ 7, 39 P.3d at 1133."If the loss results from the concurrence of some causal event other than the defendant's criminal conduct, the loss is indirect and consequential and cannot qualify for restitution under Arizona's statutes."Id.Aside from remaining faithful to statutory language, this limitation "also prevents the restitution statutes from conflicting with the right to a civil jury trial preserved by Arizona Constitution Article II, Section 23."Id.¶ 11.

¶10 Applying these standards, this Court concluded the contractor was required to "yield up to his victim[s] the fruits of the crime," which were the payments made to him to perform home remodeling.Id.¶ 9(quotingUnited States v. Fountain , 768 F.2d 790, 800(7th Cir.1985) ).But we disallowed as restitution losses attributable to the contractor's incomplete and shoddy work, concluding that the "criminal conduct of contracting without a license did not cause these losses."Id.¶ 10.Because these losses would not have occurred without a second causal event—the contractor's poor workmanship—the losses constituted indirect damages that could not qualify as restitution.Id.

¶11Cases decided after Wilkinson have reaffirmed its holding.See Town of Gilbert Prosecutor's Off. v. Downie ex rel. Cnty. of Maricopa , 218 Ariz. 466, 472 ¶ 28, 189 P.3d 393, 399(2008)(stating that criminal restitution will not always fully compensate the victim because losses may not "flow directly from the crime" and echoing concerns about "too broadly combin[ing] civil liability with criminal sentencing"(quotingWilkinson , 202 Ariz. at 30 ¶ 12, 39 P.3d at 1134 ));Patel , 251 Ariz. at 135 ¶ 14, 486 P.3d at 192("The right to restitution is thus a right to the full amount required to restore victims to the position they were in before the loss or injury caused by the criminal conduct.");State v. Slover , 220 Ariz. 239, 242–43 ¶ 5, 204 P.3d 1088, 1091-92(App.2009)(concluding "a court should order restitution for ‘damages that flow directly from the defendant's criminal conduct, without the intervention of additional causative factors’ "(quotingWilkinson , 202 Ariz. at 29 ¶ 7, 39 P.3d at 1133 ), and describing unrecoverable consequential damages as losses "not flow[ing] directly and immediately from the action of the party, but only from the consequences or results of such act"(quotingState v. Morris , 173 Ariz. 14, 17, 839 P.2d 434, 437(App.1992) ));see alsoAriz. Const. art. 2, § 2.1 (A)(8)(guaranteeing "restitution from the person or persons convicted of the criminal conduct that caused the victim's loss or injury "(emphasis added));A.R.S. § 13-804(B)(requiring court ordering restitution to "consider all losses caused by the criminal offense or offenses "(emphasis added)).

II.

¶12Petitioners argue the trial court improperly ordered payment of C.C.’s attorney fees as restitution because those fees did not flow directly from Reed's criminal conduct but instead constituted consequential damages, which cannot be recovered as restitution.See§ 13-105(16), -603(C).The State counters the court properly ordered the fees because "the fact that [C.C.] was involved in a contentious trial and found it necessary to retain counsel was the direct result of Reed's conduct."

¶13We review a restitution order for an abuse of discretion.State v. Leteve , 237 Ariz. 516, 530 ¶ 58, 354 P.3d 393, 407(2015)(citing State v. Lewis , 222 Ariz. 321, 323 ¶¶ 2, 5, 214 P.3d 409, 411(App.2009) )."A trial court abuses its discretion if it misapplies the law or exercises its discretion based on incorrect legal principles."Slover , 220 Ariz. at 242 ¶ 4, 204 P.3d at 1091.We review the interpretation of statutes and the constitution de novo.See Johnson Utils., L.L.C. v. Ariz. Corp. Comm'n , 249 Ariz. 215, 219 ¶ 11, 468 P.3d 1176, 1180(2020).

¶14 Neither the legislature nor this Court has addressed whether attorney fees voluntarily incurred by a victim in criminal proceedings are recoverable as restitution.Pursuant to A.R.S. § 13-4437, a victim has standing in criminal proceedings to "enforce any right or to challenge an order denying any right guaranteed to victims," including presenting evidence and arguments at a...