                        NOTICE: NOT FOR OFFICIAL PUBLICATION.
    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                    AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                       IN THE
                ARIZONA COURT OF APPEALS
                                   DIVISION ONE


                                        E.H.,
                                      Petitioner,

                                           v.

                   THE HONORABLE DAN SLAYTON, Judge
                      of the SUPERIOR COURT OF THE
                     STATE OF ARIZONA, in and for the
                            County of COCONINO,
                               Respondent Judge,

               STATE OF ARIZONA1; JASON CONLEE; LENDA
                        HESTER; KIMMY WILSON,
                          Real Parties in Interest.

                                No. 1 CA-SA 19-0004
                                  FILED 3-14-2019


    Petition for Special Action from the Superior Court in Coconino County
                No. CR2016-00434; CR2016-00435; CR2016-00436
                      The Honorable Dan R. Slayton, Judge

                           JURISDICTION DECLINED




1       On the court's own motion, it is ordered amending the caption as
reflected in this decision. The above referenced caption shall be used on all
further documents filed in this special action.
                                  COUNSEL

Arizona Voice for Crime Victims, Phoenix
By Colleen Clase, Jessica Gattuso, Eric Aiken
Counsel for Petitioner

Coconino County Attorney's Office, Flagstaff
By Stacy L. Krueger, Michael S. Tunink
Counsel for Real Party in Interest State

The Zickerman Law Office, PLLC, Flagstaff
By Adam Zickerman
Counsel for Real Party in Interest Conlee

C. Kenneth Ray, II, PLLC, Prescott
By C. Kenneth Ray, II
Counsel for Real Party in Interest Hester

Griffen & Stevens Law Firm, PLLC, Flagstaff
By Ryan J. Stevens
Counsel for Real Party in Interest Wilson



                       MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Michael J. Brown joined. Judge Jennifer M. Perkins specially
concurred.


J O H N S E N, Judge:

¶1            A six-year-old boy was murdered by his aunt in 2015. At the
time, the boy's older sister, E.H., was 12. The aunt had raised E.H. and her
brother from birth alongside the aunt's own four children. The aunt was
convicted of first-degree murder and child abuse in the boy's death and
sentenced to natural life in prison. The court ordered her to pay restitution
and kept restitution open. Three other adults also were charged in the
child's death. Each of the three defendants, the real parties in interest here,
pled guilty to endangerment and/or child abuse. In accepting the pleas of


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                        E.H. v. HON. SLAYTON, et al.
                             Decision of the Court

the three defendants, the superior court ordered that each of the defendants
was jointly and severally liable for restitution capped at $500,000, and put
off determining the amount of restitution pending completion of the
defendants' sentences. Through counsel, E.H. objected to each of the pleas,
arguing that the restitution caps violated her right to full economic loss
under the Victims Bill of Rights ("VBR"), Article 2, Section 2.1 of the Arizona
Constitution, and associated statutes, including Arizona Revised Statutes
("A.R.S.") sections 13-603 (2019) and -804 (2019).2 In this special action, E.H.
argues (1) the State improperly waived her right to restitution by agreeing
to the caps and (2) the superior court deprived her of her rights under the
VBR by imposing the caps. She also argues the court improperly deprived
her of her right under A.R.S. §§ 13-4437(A), (D) (2019) to fully participate in
the criminal proceedings when it did not permit her counsel to sit in the
well of the courtroom.

¶2            At the time the court imposed sentences on the aunt and the
three others, E.H. was in the legal custody of the Department of Child
Safety, which did not file a restitution claim on her behalf. At oral argument
in this special action, counsel informed the court that E.H. now has been
adopted. Her petition argues that she may require counseling and
associated services over many years, perhaps even throughout her lifetime.
We are told that her adoptive parents will file for restitution on her behalf
to recover the costs of that counseling.

¶3               Once E.H. files a claim, the superior court must order the
defendants to make restitution for the full amount of economic loss caused
to E.H. by the crimes the defendants committed against her brother. See
A.R.S. §§ 13-603(C) ("court shall require the convicted person to make
restitution to . . . the victim . . . in the full amount of the economic loss as
determined by the court"); -804(B) ("In ordering restitution for economic
loss . . . the court shall consider all losses caused by the criminal offense or
offenses for which the defendant has been convicted."); -4437(E) ("[T]he
victim has the right to present evidence or information and to make an
argument to the court, personally or through counsel, at any proceeding to
determine the amount of restitution pursuant to § 13-804.").

¶4            The record makes clear that the superior court understood it
could accept the pleas of the three defendants only if those pleas included
restitution caps. In support of the caps, the State cites State v. Crowder, 155
Ariz. 477 (1987), State v. Phillips, 152 Ariz. 533 (1987), and State v. Lukens, 151

2      Absent material revision after the relevant date, we cite the current
version of a statute or rule.


                                        3
                       E.H. v. HON. SLAYTON, et al.
                            Decision of the Court

Ariz. 502 (1986), in arguing that a pleading defendant has a due-process
right to know the maximum amount of restitution to which the plea may
subject the defendant. E.H. counters that each of the cited cases was issued
before adoption of the VBR.

¶5             In the exercise of our discretion, we decline to accept
jurisdiction of the petition for special action. See Williams v. Miles, 212 Ariz.
155, 156, ¶ 9 (App. 2006) (decision to accept special-action jurisdiction is
"largely discretionary"). With respect to E.H.'s contention that the
restitution caps violate her right to restitution, at this stage of the
proceedings, there are too many unknowns. Unless E.H.'s claimed
economic loss exceeds $500,000, it is not clear how she would be prejudiced
by the restitution caps the superior court imposed. At this point we do not
know the amount of economic loss that E.H. will claim. Moreover, in
response to a question at oral argument, counsel for the State suggested that
if the proof of economic loss E.H. eventually presents warrants restitution
in excess of $500,000, the caps would not bar the superior court from
imposing restitution in the amount proved. In that event, counsel
suggested, once the court imposes restitution that exceeds the cap, the
defendants might seek leave to withdraw from their plea agreements. See
State v. Grijalba, 157 Ariz. 112, 115 (1988) (plea may be vacated when
defendant did not agree to the amount of restitution eventually imposed if
amount of restitution was "relevant and material" to defendant's decision
to accept the plea).

¶6             Thus, at bottom, we cannot know now whether the superior
court's decision to cap restitution imposed against the three defendants will
prejudice E.H. Under these circumstances, we decline to exercise our
discretion to address the constitutional issues her petition raises. See Abbott
v. Banner Health Network, 239 Ariz. 409, 413, ¶ 10 (2016) ("courts should not
unnecessarily decide constitutional questions"); Aitken v. Indus. Comm'n,
183 Ariz. 387, 389 (1995) ("well-settled that the constitutionality of a statute
will not be determined in any case, unless such determination is absolutely
necessary") (citation omitted); see also Matal v. Tam, 137 S. Ct. 1744, 1755
(2017) ("[W]e ought not to pass on questions of constitutionality . . . unless
such adjudication is unavoidable.") (citation omitted); Ashcroft v. al-Kidd,
563 U.S. 731, 735 (2011) ("Courts should think carefully before expending
scarce judicial resources to resolve difficult and novel questions of
constitutional or statutory interpretation that will have no effect on the
outcome of the case.") (quotation and citation omitted).




                                       4
                       E.H. v. HON. SLAYTON, et al.
                            Decision of the Court

¶7            Finally, in the exercise of our discretion, we also decline to
accept jurisdiction over E.H.'s contention that the court violated her rights
by refusing to permit her counsel to sit in the well of the courtroom.

P E R K I N S, Judge, specially concurring:

¶8             E.H. asked this court whether her right to receive the full
economic value of her loss was waived, over her objection, when the trial
court directed the parties to include a restitution cap in the plea agreements
at issue. I agree with the panel that, as framed, E.H.'s asserted claim is not
ripe for this Court to resolve, for the reasons discussed supra at ¶¶ 5-6. I
write separately to note the presence of a purely legal question of statewide
importance that has apparently lain unresolved for more than a quarter
century and which requires our supreme court to reconsider its case law.
While our superior courts and criminal practitioners have identified a
practical means of addressing that unresolved question, as explained
below, this "solution" rests on a troubling constitutional inconsistency.
Whether in this or another case, our supreme court should take up this
issue.

¶9            The VBR imbues criminal victims with several specific rights
of constitutional significance and dimension. One such right is full
restitution. The State and defendants argue that a victim's constitutional
right to restitution is subordinate to a criminal defendant's right to
"knowingly, intelligently, and voluntarily" enter into a plea agreement that
places a cap on restitution, even over the victim's objection. To support
these contentions, the State and defendants rely on a series of pre-VBR
decisions from our supreme court.

¶10           In particular, in State v. Phillips, our supreme court held that a
defendant cannot "thoroughly understand the consequences of his
agreement to make restitution if [the defendant] is unaware of the
restitutionary amount that can be imposed." 152 Ariz. 533, 535 (1987). The
court explained that a "defendant must be aware of the specific dollar
amounts of restitution" the court can order before it can accept the
defendant's guilty plea. Id. The Phillips rule is explicitly based on federal
due process rights under the fourteenth amendment to the United States
Constitution. State v. Adams, 159 Ariz. 168, 170 (1988) (citations omitted).

¶11           Evaluating the VBR's impact, if any, on the Phillips rule must
involve an examination of the federal and state due process requirements
for defendants entering into a plea agreement weighed against victims'
state constitutional rights to full restitution.


                                       5
                        E.H. v. HON. SLAYTON, et al.
                       Perkins, J., Specially Concurring

¶12            As noted above, the court in Phillips based its rule explicitly
on federal constitutional due process requirements. The U. S. Constitution
mandates that criminal defendants be afforded due process of law through
the fifth and fourteenth amendments. U.S. Const. amend. V; XIV, § 1. In
federal criminal proceedings involving guilty pleas, the court must advise
defendants of their rights in a manner similar to our procedures under
Arizona Rule of Criminal Procedure 17.2. Compare Fed. R. Crim. P. 11 with
Ariz. R. Crim. P. 17.2. Unlike our rule, which does not explicitly address
restitution, Federal Rule of Criminal Procedure 11(b)(1)(K) requires the
court to inform the defendant of "the court's authority to order restitution"
before accepting a guilty plea. Notably, the comments to the 1985
amendment explain that "[t]he exact amount or upper limit" of restitution
need not be stated at the time of the plea. Fed. R. Crim. P. 11(c)(1) 1985 cmt.
The federal practice of informing defendants of the possibility of restitution
before accepting a guilty plea, without specifying the amount or maximum
amount of restitution, has never been held to violate a defendant's due-
process rights. See, e.g., Dolan v. United States, 560 U.S. 605, 608-09 (2010)
(discussing, without noting any constitutional concerns, a plea agreement
that left the amount of restitution open until appropriate restitution could
be determined); cf. State v. Zaputil, 220 Ariz. 425, 428, ¶ 11 (App. 2008)
(restitution, though part of the sentencing process, "is not a penalty or a
disability").

¶13           Thus, the federal constitution does not require defendants
entering a guilty plea to be advised of the specific amount of restitution they
will pay or the maximum amount they could be ordered to pay. The only
requirement is that the defendant be warned the court may impose
restitution.

¶14             The question left open is whether the Arizona Constitution
separately requires that a defendant know the upper limit of a potential
restitution award, and whether that requirement overrides a victim's state
constitutional right to full restitution. As noted in the panel's decision, supra
at ¶ 5, these legal questions remain unanswered because of a practical
work-around solution. That is, courts and parties to criminal proceedings
require plea agreements to include a specific restitution cap, relying on the
Phillips rule. But once entered, the courts, including this one as expressed in
this decision, supra ¶ 5, presume they may subsequently order restitution
exceeding that cap should a victim prove economic loss above the amount
of the cap.

¶15         The State should not offer, and the court should not accept, a
plea agreement with a purported cap that can later be exceeded. To do so


                                       6
                       E.H. v. HON. SLAYTON, et al.
                      Perkins, J., Specially Concurring

is, at least arguably, worse in terms of a defendant's right to knowingly,
intelligently, and voluntarily accept a plea agreement because the officers
of our courts are promoting a practice of allowing defendants to enter into
plea agreements with illusory terms. Moreover, because we will not permit
a defendant to vacate a plea agreement "[w]here the defendant has received
the full benefit of the plea bargain," a defendant who is ordered to pay
restitution exceeding the cap in their plea agreement will have limited
recourse when restitution is ordered at or near the end of his sentence. State
v. Crowder, 155 Ariz. 477, 481 (1987) (citing Brady v. United States, 397 U.S.
742, 757 (1970)).

¶16           As noted above, the constitutional avoidance doctrine, supra
¶ 6, generally directs us to resolve cases on other grounds to avoid making
pronouncements of constitutional law unless doing so is necessary. On this
basis, the panel opts against taking up the constitutional questions
presented. I do not disagree with the application of the doctrine in this
instance, by this intermediate appellate court, in the somewhat unusual
factual scenario presented by this special action. Nonetheless, I do not
believe that the doctrine should continually be applied so as to encourage
the development of a work-around "solution" that raises, rather than
resolves, constitutional concerns. At some point the duty of a judge is to
resolve difficult, even constitutional, questions.




                         AMY M. WOOD • Clerk of the Court
                          FILED: AA




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