State v. Reed

• Decision Date: 20 October 2020
• Docket Number: No. 1 CA-CR 17-0620,1 CA-CR 17-0620
• Citation: 483 P.3d 221,250 Ariz. 599
• Parties: STATE of Arizona, Appellee, v. Richard Allen REED, Appellant.
• Court: Arizona Court of Appeals

250 Ariz. 599

483 P.3d 221

STATE of Arizona, Appellee,

v.Richard Allen REED, Appellant.

No. 1 CA-CR 17-0620

Court of Appeals of Arizona, Division 1.

FILED October 20, 2020

Arizona Attorney General's Office, Phoenix, By Jillian B. Francis, Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix, By Nicholaus Podsiadlik, Counsel for Appellant

M. Alex Harris, Chino Valley, Counsel for Intervenor Lanna Mesenbrink

Arizona Voice for Crime Victims, Phoenix, By Colleen Clase, Kathryn Fuller, Co-Counsel for Amicus Curiae in support of Appellee

National Crime Victim Law Institute, Portland, Oregon, By Margaret Garvin, Co-Counsel for Amicus Curiae in support of Appellee

Presiding Judge Samuel A. Thumma delivered the opinion of the Court, in which Judge Randall M. Howe and Judge James B. Morse Jr. joined.

THUMMA, Judge:

¶1 This appeal is on remand from the Arizona Supreme Court, which specified that "the only issue" for this court to decide "is whether the restitution amount is correct." State v. Reed , 248 Ariz. 72, 81 ¶ 33, 456 P.3d 453, 462 (2020).

¶2 Defendant Richard Allen Reed, who challenged a criminal restitution order awarding the victim attorneys’ fees, died while this appeal was pending. This court then dismissed the appeal. State v. Reed , 246 Ariz. 138, 140 ¶ 5, 435 P.3d 1044, 1046 (App. 2019) (rejecting constitutionality challenge and applying Arizona Revised Statutes (A.R.S.) Section 13-106(A) (2018),¹ which states "[o]n a convicted defendant's death, the court shall dismiss any pending appeal."). The Arizona Supreme Court vacated this court's opinion, holding the Arizona Legislature "lacked authority" to enact Section 13-106(A). Reed , 248 Ariz. at 74 ¶ 2, 456 P.3d at 455. In reinstating the appeal and remanding, the Supreme Court strongly suggested that this court permit Reed's widow, Lanna Mesenbrink, to intervene. Reed , 248 Ariz. at 81 ¶ 31, 456 P.3d at 462 (quoting Ariz. R. Crim. P. 31.19(b) ). On remand, this court granted Mesenbrink's motion to intervene, allowed supplemental briefing, has considered the arguments in the original and supplemental briefs, and now affirms the restitution award.

FACTS AND PROCEDURAL HISTORY²

¶3 Reed was charged with voyeurism, a Class 5 felony committed against a co-worker in January 2015. The victim hired a law firm to represent her, assisting with determining and enforcing her rights as a victim. The law firm performed legal services for the victim, and the victim agreed to pay the firm for those services at established hourly rates. During a six-month period, the firm billed 37.6 hours of attorney time and 19 hours of paralegal time, totaling $17,909.50. Most of that time was for trial preparation, attending trial and then seeking restitution, with the remainder reflecting miscellaneous tasks and client communication. The firm spent no time on civil litigation or other independent legal services.

¶4 The jury found Reed guilty as charged and the court later placed him on probation, leaving restitution open. A motion for restitution sought, among other things, $17,909.50 for the victim's attorneys’ fees. After an evidentiary hearing, the superior court issued a restitution order awarding the victim $17,909.50 in attorneys’ fees and granting in part and denying in part other requested restitution. Reed timely appealed the restitution order awarding the victim attorneys’ fees. See State v. French , 166 Ariz. 247, 248 n.3, 801 P.2d 482, 483 n.3 (App. 1990) (noting an "order of restitution is a separately appealable order").

DISCUSSION

I. The Request for Judicial Notice Is Denied.

¶5 Reed's counsel asks this court to take judicial notice of information about the victim's attorney and his law firm as well as compensation for public defenders, some of which was obtained from the Internet. None of that information, however, was provided to the superior court. Moreover, at the time of the restitution hearing, that information either was available to Reed's counsel (meaning, if relevant, it should have been provided to the superior court) or it was not available to Reed's counsel (meaning it could not have been considered by the court). Because the information was not provided to the superior court, it does not constitute adjudicative facts relevant to whether that court erred. See Ariz. R. Evid. 201(a). Accordingly, the request to take judicial notice of the information is denied. See Ariz. R. Evid. 201.

II. The Superior Court Properly Awarded the Victim Restitution for Attorneys’ Fees She Reasonably Incurred.

¶6 Reed's counsel raises broad challenges to the restitution award that can be categorized as follows: (1) the fees were consequential losses that cannot be awarded as restitution; (2) the superior court did not determine whether the fees were reasonable; (3) there was no evidence the victim incurred any loss; and (4) the award violated due process because it forced Reed to pay the victim for his own prosecution. Mesenbrink does not challenge the restitution award but claims the Clerk of Court improperly recorded the restitution order with the County Recorder, resulting in an improper lien on the community property she owned with Reed. The court addresses these claims in turn.

¶7 This court reviews a restitution award for an abuse of discretion, State v. Linares , 241 Ariz. 416, 418 ¶ 6, 388 P.3d 566, 568 (App. 2017), recognizing issues of statutory interpretation are reviewed de novo, State v. Lantz , 245 Ariz. 451, 453 ¶ 9, 430 P.3d 1262, 1264 (App. 2018). Because restitution is neither an element of the offense nor punishment, it need only be established by a preponderance of the evidence. State v. Lewis , 222 Ariz. 321, 324 ¶ 7, 214 P.3d 409, 412 (App. 2009). The superior court "has wide discretion in setting restitution based on the facts of each case." State v. Dixon , 216 Ariz. 18, 21 ¶ 11, 162 P.3d 657, 660 (App. 2007) (citation omitted). "The court shall not consider the economic circumstances of the defendant in determining the amount of restitution." A.R.S. § 13-804(C). The superior court at the restitution hearing, not this court on appeal, properly resolves conflicting evidence; this court "view[s] the facts and all reasonable inferences therefrom in the light most favorable to" upholding a restitution award. Lewis , 222 Ariz. at 323, 324 ¶¶ 2, 5, 214 P.3d at 411, 412.

¶8 Although Reed's counsel challenges the restitution awarded, no contention is made that attorneys’ fees cannot be the subject of a restitution award. Indeed, the Arizona Supreme Court has affirmed such an award, ruling the superior court "did not abuse its discretion" in awarding attorneys’ fees as restitution. State v. Leteve , 237 Ariz. 516, 530 ¶ 58, 354 P.3d 393, 407 (2015). The defendant in Leteve did not challenge the award on appeal, and the court "assume[d], without deciding, that attorney fees incurred to enforce victims’ rights may be compensable in restitution." Id . This court has affirmed restitution awards of attorneys’ fees incurred in probate proceedings of victims who were killed. See State v. Spears , 184 Ariz. 277, 292, 908 P.2d 1062, 1077 (1996) (finding attorneys’ fees incurred to close victim's estate "are proper restitutionary items" where no evidence indicates the fees incurred "were unreasonable or contrary to custom"); State v. Baltzell , 175 Ariz. 437, 439, 857 P.2d 1291, 1293 (App. 1992) ("We believe that customary and reasonable attorney's fees incurred to close the victim's estate should be allowed" as restitution.). With this background, the court addresses the specific challenges asserted by Reed's counsel to the restitution award in this case.

A. The Fees Awarded Were Economic Losses Recoverable as Restitution, Not Consequential Damages Exempt from Restitution.

¶9 A person convicted of a crime is required to make restitution "in the full amount of the economic loss as determined by the court." A.R.S. § 13-603(C) ; accord A.R.S. § 13-804 (authorizing restitution award "to any person who suffered an economic loss caused by the defendant's conduct"). Awarding restitution under A.R.S. § 13-603(C) is mandatory, while awarding restitution under A.R.S. § 13-804(A) "is discretionary but broad." State v. Leal , 248 Ariz. 1, 3 ¶ 8, 455 P.3d 327, 329 (App. 2019). The victim here sought restitution under both Sections 13-603 and 13-804.

¶10 "Economic loss" is defined as "any loss incurred by a person as a result of the commission of an offense," including "losses that would not have been incurred but for the offense," but excluding "consequential damages." A.R.S. § 13-105(16). As Reed's counsel notes, "consequential damages that are too attenuated from the crime" are not recoverable as restitution. Linares , 241 Ariz. at 418 ¶ 9, 388 P.3d at 568. Accordingly, to be recoverable as restitution: "(1) the loss must be economic, (2) the loss must be one the victim would not have incurred but for the criminal conduct, and (3) the criminal conduct must directly cause the economic loss." Leal , 248 Ariz. at 4 ¶ 12, 455 P.3d at 330 (quoting State v. Madrid , 207 Ariz. 296, 298 ¶ 5, 85 P.3d 1054, 1056 (App. 2004) ); see also State v. Wilkinson , 202 Ariz. 27, 29 ¶ 7, 39 P.3d 1131, 1133 (2002) ).

¶11 Reed's counsel argues the fees awarded were not economic losses but, instead, were nonrecoverable consequential damages. Reed's counsel variously argues the fees awarded "had no nexus to the" crime; "were attenuated factually and temporally from the crime;" and did not "flow directly and immediately from the crime." It is true the fees were not incurred at the scene of the crime and were incurred after the crime. Reed's counsel, however, has cited no authority for the proposition that restitution is limited to services provided at the scene of the crime or other losses incurred before or at the time of the crime. In arguing Reed did not steal the fees, Reed's counsel argues the victim could not seek reimbursement for the cost of services the victim incurred because of Reed's...