State v. Wideman
| Decision Date | 22 May 1990 |
| Docket Number | CA-CR,No. 1,1 |
| Citation | 798 P.2d 1373,165 Ariz. 364 |
| Parties | STATE of Arizona, Appellee, v. Jacob Edgar WIDEMAN, Appellant. 89-966. |
| Court | Arizona Court of Appeals |
Appellant Jacob Edgar Wideman (defendant) pled guilty to first-degree murder and to two counts of grand theft pursuant to a plea agreement. On August 13, 1986, defendant killed Eric Kane after which he stole an automobile and over $3,000 in traveler's checks. The vehicle was recovered together with $1,500 in traveler's checks. The defendant had forged and cashed traveler's checks approximating $1,500.
At the change-of-plea hearing, the trial court considered the terms of the plea agreement and found that the defendant had entered the pleas knowingly, intelligently, and voluntarily. The defendant was sentenced to life imprisonment without possibility of parole for twenty-five years on the first-degree murder charge, and to aggravated terms of ten years on the two counts of theft, concurrent with each other and with the life sentence.
The defendant timely appealed the judgments and sentences. On appeal, the defendant argues that: (1) his pleas were involuntary because the amount of restitution was not properly set prior to acceptance of the plea; (2) restitution for travel expenses and for family counseling expenses was assessed in error; and (3) the trial court improperly imposed aggravated terms of imprisonment on the theft counts.
The defendant contends that his pleas were involuntary because the amount of restitution exceeded the amount estimated prior to the entry of his guilty pleas. In the defendant's plea agreement, restitution was required but there was no amount mentioned. The state asserts that the defendant has waived his right to withdraw his pleas because he did not object to the imposition of the restitution during or after the restitution hearing, and did not request the trial court to allow him to withdraw his pleas. At the change-of-plea hearing, the state listed the items of restitution it was requesting, but noted that "the parties may well disagree as to the propriety" of the various categories and amounts. The categories and amounts approximated by the state were: (1) the travel expenses of the victim's family to attend various court hearings ($5,000 to $7,000); (2) funeral expenses for the victim (approximately $4,500); (3) mental health counseling for the victim's family (approximately $4,000); and (4) traveler's checks spent ($1,500). The maximum amounts totaled $17,000. The state pointed out that defense counsel objected to some of the items of restitution on the grounds they were "consequential amounts that should not be ordered as restitution." The trial court found that the defendant entered his pleas knowingly, intelligently, and voluntarily; accepted the pleas; and set a restitution hearing to determine the amount of restitution.
At the restitution hearing, the state introduced into evidence a number of the victim's family's hotel bills, air fare, and other expense items. The amount claimed for funeral/burial expenses was $5,496.00; for the mental health counseling expenses of the victim's family, $9,475.00; and for expenses incidental to the family's attendance at the various hearings, $15,570.79, for a total of $30,541.79. This included expenses for airfare, limousine service, telephone calls, and hotel bills at various times for up to five people: the victim's mother, father, sister, brother, and grandmother. The trial court awarded $29,243.74 as restitution. Of the amount awarded by the trial court, $15,570.79 was for travel expenses, and $8,601.68 was for family counseling.
Immediately prior to the hearing, defendant received a 68-page restitution memo detailing the requested items for restitution with a total amount in excess of $30,000. The victim's father testified in detail with respect to the requested amounts and was subject to cross-examination.
Counsel for defendant at the conclusion of the evidence with respect to restitution said:
Your Honor, I have some comments with regard to the restitution, first. The amounts submitted today are, in addition to being in excess of the estimates that were given--for example, I recall that the travel expense estimate was between five and $7500.00--5,000 and $7500.00. We object to--I object to the travel expenses being awarded as restitution--as restitution, and some of the other items which I submit are not restitution or are not appropriate items for restitution.
For example, there is the cost--the travel expense, and lodging is the largest one. That was something that the Kane family chose to do, to come out to Arizona. It was not something that was caused by--there is a causal--there is not a proximate-cause basis for that. A transcript of the transfer hearing--requesting a transcript of the transfer hearing, that is not something that is a proper subject for restitution.
So, with respect to restitution, I think that the request for an order that Jake pay that amount of restitution is excessive, and I ask the Court to award reasonable amounts for those matters only for which there is a direct causal relationship, rather than those that should ordinarily be established in a civil proceeding. [Emphasis added.]
Defendant contends that this statement constituted an objection to the trial court's consideration of amounts in excess of the estimated amounts made prior to the time of the entry of the pleas of guilt. We disagree. He did mention that the amounts were in excess of the estimates but he did not follow through with a specific objection. His only objection had to do with requested restitution items which he contended "are not appropriate items for restitution."
Defendant relies on the following cases: State v. Crowder, 155 Ariz. 477, 747 P.2d 1176 (1987); State v. Phillips, 152 Ariz. 533, 733 P.2d 1116 (1987); State v. Lukens, 151 Ariz. 502, 729 P.2d 306 (1986). The Lukens decision was limited to a holding that a defendant shall not be required to pay restitution in amounts that exceed the statutorily prescribed monetary parameters of the crime to which he pleads guilty unless the defendant voluntarily and intelligently agrees to pay the higher amount.
In Phillips, our supreme court stated:
[W]e will conclude that appellant thoroughly understood the consequences of his agreement to pay restitution only if the record contains at least one of the following: (1) a statement in the plea agreement setting forth a specific dollar amount of restitution; (2) a statement by the defendant indicating agreement to pay a specific dollar amount of restitution; or (3) a warning by the trial judge prior to accepting the defendant's plea that he can order restitution of a specific dollar amount.
Id. 152 Ariz. at 535, 733 P.2d at 1118 (emphasis added).
Crowder held that the proper procedure in seeking to withdraw a plea of guilty is to file a Rule 32 petition for post-conviction relief. In Crowder, the court found that defendant had not been advised as required by Phillips. Upon remanding the case to the trial court for an evidentiary hearing, the court stated:
[T]he trial court should apply the legal principles stated in this opinion to determine whether the extended record shows defendant had knowledge of the amount of restitution. If not, the court must then determine whether such lack of knowledge was relevant and material to the making of the plea agreement. If the court finds from all the evidence that the approximate amount of restitution was unknown to defendant and was a relevant and material factor in defendant's decision to plead, then the trial court should apply Lukens and Phillips and vacate the entire plea.
State v. Crowder, 155 Ariz. 477, 482, 747 P.2d 1176, 1181 (1987).
In Lukens, Phillips, and Crowder, contested restitution hearings were not held and waiver was not an issue. In this case, the restitution memo filed just prior to the restitution hearing and the hearing itself afforded the defendant ample opportunity to object based on the fact that the requested amounts were substantially in excess of the maximum amounts stated at the time the pleas were entered. Defendant also had ample opportunity to request withdrawal of his guilty pleas in the event that the court ordered the excess amounts and to move to withdraw his pleas after the court made the award. Lukens was decided on November 30, 1986. Phillips was decided February 26, 1987, and in Crowder, the defendant's plea was entered prior to the decisions in Lukens and Phillips. He was sentenced on December 4, 1986, only 14 days after the decision in Lukens was filed. Therefore, it could not be contended that the court in Crowder was aware of the changes in law set forth in Lukens and Phillips at the time he entered his pleas or probably even at the time of sentencing. The restitution and sentencing hearing in the instant case occurred more than a year after the Lukens, Phillips, and Crowder opinions were filed. Nevertheless, defendant failed to claim that his pleas were not voluntarily and intelligently made until that issue was presented on appeal. In the case of State v. Holder, 155 Ariz. 83, 85, 745 P.2d 141, 143 (1987), our supreme court stated:
Absent fundamental error, error is usually considered to be waived on appeal unless it was objected to at trial. State v. Henley, 141 Ariz. 465, 687 P.2d 1220 (1984). This principle also applies to constitutional error. See State v. Magallanes, 110 Ariz. 235, 517 P.2d 505 (1973). Only fundamental error, that is, error which goes to the very foundation of the case, may be...
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State v. Williams
...counts. The better practice is to discuss aggravating and mitigating factors for each count separately. State v. Wideman, 165 Ariz. 364, 369-70, 798 P.2d 1373, 1378-79 (App.1990). However, that is not an absolute requirement. We doubt that the trial judge used the pecuniary gain to aggravat......
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...AND FACTS ¶ 2 We view the facts in the light most favorable to upholding the trial court's sentence. State v. Wideman, 165 Ariz. 364, 369, 798 P.2d 1373, 1378 (App.1990). Over a two-month period, Monaco sold cocaine five times to an undercover police officer. The first sale he sold one quar......
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