State v. Steffy, 1
| Decision Date | 01 October 1992 |
| Docket Number | No. 1,CA-CR,1 |
| Citation | 839 P.2d 1135,173 Ariz. 90 |
| Parties | STATE of Arizona, Appellee, v. William Joel STEFFY, Appellant. 91-1042. |
| Court | Arizona Court of Appeals |
The only issue raised on appeal is whether the trial court erroneously ordered William Joel Steffy (defendant) to pay restitution to the victim of an aggravated assault for unpaid medical expenses for which the victim expects to receive reimbursement from an insurance carrier who has not requested restitution. We find no error and affirm.
Defendant's convictions for manslaughter and two counts of aggravated assault arose from an automobile accident that occurred while defendant was driving a stolen car, when his blood alcohol content was between .25% and .308%, and while driving at between 80 and 100 miles per hour in the wrong lane on Scottsdale Road. Defendant collided head-on with another car, severely injuring the two passengers in that car and killing the passenger in his car.
Defendant was charged by indictment with one count of second degree murder, a class 1 felony, two counts of aggravated assault, class 3 felonies, and one count of theft, a class 3 felony. The state filed an allegation of the dangerous nature of the felonies, pursuant to A.R.S. § 13-604. Defendant subsequently entered into a plea agreement in which he agreed to plead no contest to one amended count of manslaughter, a class 3 dangerous felony, and to two counts of aggravated assault, class 3 non-dangerous felonies. The parties agreed that defendant would be sentenced to between 12 and 15 years imprisonment on the manslaughter count, and that the aggravated assault counts would receive concurrent sentences. Defendant agreed to pay restitution to all victims, including the victim of the dismissed theft count, not to exceed $100,000.00. In return, the state agreed to dismissal of the remaining count and allegations.
At the change of plea hearing, the trial court advised defendant of the rights he was waiving and the consequences of his plea of no contest, and determined that the plea was entered into knowingly, voluntarily, intelligently, and was factually based. The court accepted the plea and ordered the preparation of a presentence report.
Regarding restitution, the presentence report indicated that the probation officer had been unable to contact the victims of the manslaughter and theft counts, so no restitution amounts were available for those counts. On the aggravated assault counts, the presentence report set out the expenses the two passengers of the other vehicle had incurred. The first victim had incurred expenses of $3,800.00 for the loss of her uninsured vehicle and $10.00 for her insurance deductible for medical expenses. Her insurer had paid medical expenses of $39,985.05, and was seeking reimbursement. Regarding the second victim, the presentence report stated:
[This victim, ...] sent a letter to this officer concerning his sentencing comments. This letter is attached for the Court's perusal. [The victim] stated that thus far he has paid $411.00 in out-of-pocket expenses as a result of the accident. His medical bill was $24,737.10. He believes Blue Cross/Blue Shield has paid $15,574.60. This leaves $9,162.50 in unpaid bills. [The victim] does not know how much of this amount he will be responsible for and whether he will be required to pay his $2,000.00 insurance deductible. He is presently asking for $9,573.50 in restitution. He believes this amount will be substantially reduced in the future once his insurance company pays more of the bills....
[The victim's] insurance company is Blue Cross/Blue Shield of California. Patty Gillespie, from the third party liability department, stated that because the third party was uninsured, Blue Cross/Blue Shield does not request reimbursement. As of October 1, 1990, the company is not pursuing reimbursement.
(Emphasis added.) The presentence report concluded:
At the present time, it appears the defendant owes a total of $54,743.55 in restitution. However, [the victim] stated his bill should be reduced in the future as his insurance company pays additional bills. One of his insurance companies, State Farm Insurance, expects to be paying some of [the victim's] bills. Although the company has made no payments yet, they would like to receive restitution for those future payments.... As an accurate restitution amount cannot be established at this time, this officer will be recommending a restitution hearing be held at some point in the future.
(Emphasis added.) The victim's letter, attached to the presentence report, stated, in part:
Physically I sustained the following injuries: Pulmonary contusion, Ulna bone broken in right arm, Compound fracture of radius bone in left arm, broken right ankle, Lacerations of the face, neck and chest.
Fortunately I was only in the hospital for seven days. Because both arms and my ankle were broken I was confined to a wheelchair for the next two months. I had pins in my right arm for two months, and casts and braces on for over 3 months. In addition I had to go through extensive physical therapy to regain the movement I had lost in my limbs.
I am enclosing the bills for the medical treatment I received through Scottsdale Memorial Hospital in Arizona, and through Orthopedic Associates of San Diego in California. The sum of these bills comes to $24,387.06. Included in this amount is two prescriptions I had filled at Longs Drug Stores, Inc.
Some other items I was wearing that were destroyed in the accident include my pants, shoes, shirt, and watch. The value of these items comes to $185.
Most of the $24,387.06 in medical bills has been paid by my health insurance, Blue Shield of California. I also had uninsured motorist coverage with my auto insurance State Farm.
. . . . .
... I was working as a maintenance worker for $10.64 per hour.... Because of this accident I lost about 150 hours overtime alone which comes to $2,392.50 at $15.95 per hour. In regular wages I figure I have lost about $12,000 since the accident. I have been looking for employment since the time I was released to go back to work. Unfortunately due to the current recession I am still unemployed.
At sentencing, the court afforded defendant the opportunity to set a mitigation hearing, which defendant declined. The court also afforded defense counsel the opportunity to comment on the accuracy of the presentence report, and counsel did not question the amount of restitution recommended in that report. No request for a restitution hearing was made prior to sentencing.
After determining that no restitution was due in the manslaughter and theft counts, the court ordered that defendant pay the other two victims a total of $54,743.55 in restitution, "to be distributed equally amongst the victims as set forth on the restitution ledger request." 1 Defendant was sentenced to an aggravated term of twelve years on the manslaughter count, with credit for 325 days already served. The court also sentenced defendant to concurrent presumptive terms of five years imprisonment on the aggravated assault counts, to be served consecutively to the manslaughter sentence.
Defendant timely appealed.
We first note that defendant neither objected in the trial court to the amount of restitution imposed in this case, nor requested a restitution hearing and, in fact, specifically waived his right to a mitigation hearing. When the trial court asked defense counsel if she had anything to add to the presentence report, no objection was made to the amount of restitution recommended in that report, and no request for a restitution hearing was made.
A defendant has a due process right to contest the information on which the amount of a restitution order is based. State v. Fancher, 169 Ariz. 266, 267, 818 P.2d 251, 252 (App.1991). The amount of a victim's loss is normally determined as part of sentencing, and that is where the objection may be made, or a restitution hearing requested. See State v. Scroggins, 168 Ariz. 8, 9, 810 P.2d 631, 632 (App.1991). However, the right to be heard as to the amount of restitution may be waived. Cf. State v. Lewus, 170 Ariz. 412, 414, 825 P.2d 471, 473 (App.1992) (). We believe defendant clearly waived his right to a restitution hearing by his explicit waiver at sentencing and by counsel's failure to object to the amount imposed.
Moreover, by not raising the issue of insurance reimbursement at sentencing, he has waived the right to present this issue on appeal. However, because the state has not argued waiver and because the issue involves undisputed facts and raises an issue of interest to the state at large, we will address it notwithstanding defendant's failure to raise this issue in the trial court. See State v. Prieto, 172 Ariz. 298, 836 P.2d 1008 (App.1992).
On appeal, defendant argues that it was improper for the trial court to order restitution to the victim for medical bills for which the victim expects reimbursement when the insurer does not request reimbursement. This argument is faulty.
As we have previously pointed out, restitution of full economic loss to the victim of a crime is mandatory under our sentencing scheme. See A.R.S. § 13-603(C), A.R.S. § 13-804; State v. French, 166 Ariz. 247, 801 P.2d 482 (App.1990). The fact that a victim does not request restitution does not change the court's obligation to order it; indeed, in the context of determining the effect of a victim's civil settlement with a defendant's insurer upon a criminal restitution order, we have previously...
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