                             IN THE COURT OF APPEALS
                                 STATE OF ARIZONA
                                   DIVISION TWO


THE STATE OF ARIZONA,                            )
                                                 )     2 CA-CR 2002-0251-PR
                                 Respon dent,    )     DEPARTMENT B
                                                 )
                    v.                           )     O P I N IO N
                                                 )
CLAYTON M . GUILLIAMS,                           )
                                                 )
                                   Petitioner.   )
                                                 )


   PETITION FOR REVIEW FROM THE SUPERIOR COURT OF PINAL COUNTY

                                  Cause No. CR-2000027028

                         Honorable Stephen F. McCarville, Judge

          REVIEW GRANTED; RELIEF GRANTED IN PART; REMANDED


Robert Carter Olson, Pinal County Attorney
 By Robert C. Brown                                                           Florence
                                                              Attorneys for Respondent

Michael F. Beers, Pinal County Public Defender
 By Bret H. Huggins                                                              Florence
                                                                  Attorneys for Petitioner


E S P I N O S A, Chief Jud ge.
¶1             Petitioner Clayton Guilliams pled guilty to attempted escape in the second

degree. The trial court suspended imposition of sentence, placed Guilliams on three years’

probation, and over his objection, ordered him to pay restitution to the Arizona Department of

Corrections (ADOC) in the amount of $47,626.55. Guilliams challenged the restitution order

in a petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P., 17 A.R.S.

This petition for review follows the trial court’s summary denial of relief, which we review for

abuse of discretion. State v. Watton, 164 Ariz. 323, 793 P.2d 80 (1990). F inding som e merit

to a portion of Guilliams’s restitution argument, we conclude the trial court abu sed its

discretion in summ arily rejecting his claims, and remand for further findings regarding the

restitution order.

                                         Background

¶2             The following facts, drawn from the presentence report, are uncontroverted.

While employed by ADOC as a maintenance worker in Florence, Guilliams became acquainted

with ADOC inmate Steven Hummert and accepted his offer to help him escape.                  On

September 29, 2000, Hummert concealed himself inside a large air conditioner box, which

several inmates load ed onto a tru ck. Guilliams drove the truck off the prison grounds to a

predetermined location in Mesa, where he left the vehicle unattended. When he returned

fifteen minutes later, Hummert was gone, and an envelope containing an agreed upon $700

cash had been left with the truck. Guilliams drove the truck back to the prison, where he was

immediately questioned. He initially denied participating in Humme rt’s escape b ut ultimately

admitted his involvement. Hummert was apprehended nearly two months later in Oregon.

                                               2
¶3             Pursuant to the plea agreement, Guilliams was convicted of attempted escape,

apparently under an accomplice liability theory for the act of assisting Hummert to escape.1

The plea agreement provided that “the amount of restitution shall be fixed by the Court at the

time of sentencing, and shall not exceed the amount of $1,000,000.00.” The presentence

report suggested that the court order Guilliams to pa y $15,147 to the “v ictim,” ADOC. At the

sentencing hearing, the trial court suspended the imposition of sentence and placed Guilliams

on probation but did not order him to pay restitution at the time, nor did the court impose a fine

of any kind. In its sentencing minute entry, the court stated that the restitution amount w as to

be determined at a later date.

¶4             Guilliams subsequently filed an objection to restitution, contending that ADOC’s

investigative costs in attemp ting to locate and recapture H ummert were not economic losses

to the victim and, th erefore, no t compens able through restitution proceedings. Guilliams first

claimed ADOC w as not a “victim” as contemplated by A.R.S. § 13-603(C), one of the

restitution statutes; he also claimed that investigative costs were consequential damages not

subject to a restitution order. The state responded that ADOC w as entitled to restitution for

the “significant amoun ts of time and m oney in the efforts to recapture” Hummert.




       1
          The transcript of the change-o f-plea hearing has not been provided to us, and we
therefore have no record of the factual basis for Guilliams’s guilty plea. The plea agreement
itself cited the accomplice liability statutes, A.R.S. §§ 13-301, 13-302, and 13-303, and stated
that Guilliams had committed the crime “by knowing ly assisting Steven Hum mert in his escape
from the Arizona D epartment of Corrections.”

                                                3
¶5            ADOC submitted documents showing it had expended $50,827.81 in “travel

expenses, apprehension costs, and costs incurred in the search and capture of inmate Steven

Hummert.” That figure was broken down as follows. ADOC’s Criminal Investigations Bureau

claimed $20,877.50, a figure that appears to have been calculated by approximating the number

of hours department personnel had devoted to the Hummert case from the da y he escape d until

he was captured, multiplied by a typical hourly wage. Most of those hours were accrued in the

first month following the e scape. ADOC also claimed it had incurred ho tel and airfare c osts

totaling $1,455.11 when one of its investigators traveled to Oregon.          ADOC’s Prison

Operations claimed $28,495.20. That figure appears to have been based on salaries and wages

paid for time allocate d to Hum mert’s escap e by approx imately 160 ADOC personnel and staff

on the day of the actual escap e. The figu re included significant ov ertime pay and incidentals

such as gasoline and sack lunches.

¶6            Guilliams moved to depose the director of ADOC in order to determine the

basis for ADOC’s claim for restitution. The trial court denied the motion for deposition,

noting that the director was not the proper witness to testify regarding the amount of

restitution sought by ADOC. Other ADOC personnel testified as to the basis for ADO C’s

claims. After a con tested hearin g at which the trial court denied Guilliams’s renewed

objection to restitution, the trial court found ADOC’s claim for 2,789 sack lunches

unreason able, allow ing instead fo r only 304 meals, but otherwise approved the remainder of

its claims and ordered Guilliams to pay $47,626.55 in restitution, itemized as follows:




                                               4
$20,887.50 to the Criminal Investigations Bureau; $1,455.11 in hotel and airfare costs; and

$25,283.94 in prison operations costs.

¶7             In his petition for p ost-conviction relief, Guilliams challenged the restitution

order on two grounds: that ADOC was not a victim entitled to restitution under Arizona law,

and that the costs of investigating an escape a nd recapturing the escap ee were consequential

damages and therefore not appropriate restitution for the crime of attempted escape. The trial

court summa rily denied th e petition and confirmed its finding that A DOC was entitled to

$47,626.55 in restitution from Guilliams.

                                          Discussion

a. Deposition of ADOC Director

¶8             We first address G uilliams’s com plaint abou t the trial court’s d enial of his

motion to depose the ADOC Director in preparation for the restitution hearing. The motion

was based on the Director’s having made public statements about the case and having written

a letter to the trial court expressing his displeasure with the plea agreement. The Director

responded, through a sworn affidavit, that he had not participated in and did not have direct

knowledge of how A DOC had calcu lated its restitution re quest. In the absence of any showing

that the Directo r was invo lved in making those calculations, we see no abuse of discretion in

the trial court’s re fusal to orde r his deposition. See State v. Fuller, 143 Ariz. 571, 694 P.2d

1185 (1985).




                                               5
b. AD OC as V ictim

¶9             We next consider whether ADOC is a “victim” in this case for purposes of

restitution. Section 13-60 3(C) prov ides in pertine nt part:

               If a person is convicted of an offense , the court sh all require the
               convicted person to m ake restitution to the person who is the
               victim of the crime . . . in the full amount of the economic loss
               as determined by the court and in the manner as determined by the
               court . . . pursuant to chap ter 8 of this title.

Section 13 -804, A.R.S., provides in p ertinent part:

                   A. Upon a defendant’s conv iction for an offense causing
               economic loss to any person, the co urt, in its sole disc retion,
               may order that all or any portion of the fine imposed be allocated
               as restitution to be paid by the defendant to any person who
               suffered an economic loss cause d by the defe ndant’s co nduct.

                  B. In ordering restitution for economic loss pursuan t to
               § 13-603, subsection C or subsection A of this section, the court
               shall consider all lo sses caused by the criminal o ffense or
               offenses for which the defendant has been convicted.

Section 13 -901(A), A.R.S ., provides in pertinent p art:

               If probation is granted the court . . . shall order restitution
               pursuant to § 13-603, subsection C where there is a victim who
               has suffered economic loss.

Section 13 -105(14), A.R.S ., provides :

               “Econ omic loss” means any loss incurred by a person a s a result
               of the commission of an offense. Economic loss includes lost
               interest, lost earnings and other lo sses which would not have been
               incurred but for the offense. Economic loss does not include
               losses incurred by the convicted person, damages for pain and
               suffering, punitive damag es or consequential dam ages.




                                                6
¶10            Guilliams first argues, as he did belo w, that A DOC cannot be a victim for

purposes of § 13-603(C), partly because ADOC does not fit within the definition of “victim”

contained in the statutory and Arizona constitutional provisions addressing the rights of crime

victims. He concedes that § 13-804 permits any portion of a fine to be allocated as restitution

and ordered p aid to “any person” but correctly notes that no fine was imposed here. We do not

agree, however, that, as a matter of law, an institution such as ADOC cannot be a victim and be

awarded restitution wh en no fine h as been ordered simp ly because it is not a victim under a

literal reading of the victims’ rights provisions.

¶11            Guilliams essentially argues that ADOC is not entitled to restitution because

escape is a victimless crime. Cf. State v. Sorkhabi, 202 Ariz. 450, 46 P.3d 1071 (App. 2002)

(crime of resisting arrest, A.R.S. § 13-2508(A), not a victimless crime beca use statute

contains element that offense be committed a gainst or crea te risk of injury to another person).

A “victimless crime” has been described as “‘a crime which generally involves only the

criminal, and which has no direct victim.’” Id. ¶ 11, 46 P.3d a t 1074, quoting Black’s Law

Dictionary 1567-68 (6th ed. 1990). ADOC’s entitlement to restitution, however, is not

determined by the label attached to the offense, but rather, by the scope the legislature intended

to give the term “victim” in the restitution statutes. See State v. Foy, 176 Ariz. 166, 859 P.2d

789 (App. 1993) (in construing restitution statutes, court reviews statutory scheme by

examining legislative intent, the statutory language, the objectives to be accomplished, and the

evils to be remedied).




                                                7
¶12            The purpose o f the restitution sta tutes is to make victims whole. See State v.

Lindsley, 191 Ariz . 195, 953 P.2d 1248 (Ap p. 1997); State v. Ellis, 172 Ariz. 549, 838 P.2d

1310 (App. 1992). Sections 13-105(14) and 13-603(C) require restitution for “economic

loss” incurred by a “person as a result of the commission of an offense.” The definition of

“person” for this title includes a “government” and “a governmental authority.” § 13-105(26).

¶13            Although the term “victim” is not defined in the statute, our supreme cou rt

interpreted the scope of § 13-603(C) in State v. Wilkinson, 202 Ariz. 27, 39 P.3d 1131

(2002). The court upheld, in part, a restitution award against a contractor who had been

convicted of contracting without a license, a victimless crime. The court focused on the

relationship between the criminal conduct and the claimed economic loss, noting that the test

is whether the particular criminal conduct directly caused an e conomic loss. See also S tate

ex rel. McDougall v. Superior Court, 186 Ariz. 218, 920 P.2d 784 (App. 1996) (defendant

convicted of leaving th e scene of an accident, a victimless crime, could be required to pay

restitution for injuries suffered in accident if act of leaving aggravated injuries). And in State

ex rel. Romley v. Superior Court, 184 Ariz. 409, 909 P.2d 476 (App. 1995), Division One of

this court held that the owner of a car that had been damaged in an accident caused by an

impaired driver was a victim for purposes of the Victims’ B ill of Rights and the Victims’

Rights Implentation Act. 2 Although the defendant argued that aggravated driving under the


       2
         The victims’ rights implementing statutes define “victim” as a “person against whom
the criminal offense has been committed.” A.R.S. § 13-4401(19). Although that definition
applies only to title 13, chapter 40, the Romley court’s analysis of the scope of that definition
is instructive here.

                                                8
influence of an intoxicant is a “victimless” crime, especially considering the driver of the

damaged car had sustained no personal injuries, the court found that a victim need not suffer

personal injury to be a crime victim. Id. at 410, 909 P.2d at 477.

¶14            Accordingly, even a so-called “victimless” crime can result in a victim entitled

to a restitution award. Under this analysis, the restitution statutes do not require that a specific

victim be named in a statute, indictment, or ve rdict form. A “victimless c rime” may still

support an award of restitution so long as the criminal act directly results in econom ic

damages to the person or entity receiving the award.

¶15            In Wilkinson, the court explained that a burglar who breaks a window can be

ordered to pay restitution for the costs of the broken window, even when damaging the building

is not an elemen t of burg lary. And burglary does not include as an element that the crime be

committed against a specific person. See A.R.S. §§ 13-1506 through 13-1508. We see no

conceptual difference b etween a warding restitution for economic losses resulting from a

burglary— essentially a criminal entry into a structure —and awarding restitution for e conomic

losses resulting from an escape —essen tially a criminal exit from a structure. We also see no

reason why the result would be different whether the burgled (or escaped-from) building

belonged to a private citizen or a governmen tal entity such as ADOC.            Accordingly, we

conclude that the trial court did not abuse its discretion in rej ecting Gu illiams’s broad claim

that ADO C was not a v ictim entitled to any restitution whatsoever.




                                                 9
c. Consequential Damages

¶16            We next turn to Guilliams’s argument that the restitution awarded to ADOC was

not warranted becau se it included conseque ntial costs incurred by ADOC in investigating

Hummert’s escape and recapturing him, which are not appropriate restitution for the crime of

escape. The parties have not cited us to any Arizona authority addressing whether, or to what

extent, restitution is appropriate for economic loss caused by a prison escape, nor are we

aware of any su ch auth ority.

¶17            In Wilkinson, our supreme c ourt focuse d on the ap parent tensio n in

§ 13-105(14), which authorizes restitution for losses which would not have been incurred “but

for” the criminal offense, but expres sly precludes restitution for “consequ ential damages.”

The court found restitution must be (1) based on economic loss that (2) would not have

occurred but for the criminal ac t. The c ourt conclude d that, additionally,

               the statutory scheme imposes a third requirement: the criminal
               conduct must directly cause the econom ic loss. 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 qua lify for restitution under Arizona’s
               statutes. . . . We hold, therefore , that the statutes direct a court
               to award restitution for those damages that flow directly from the
               defendant’s criminal conduct, without the intervention of
               additional causative factors.

Wilkinson, 202 Ariz. 27, ¶ 7, 39 P.3d 1131, 1133.

¶18            Arizona is not alone in allowing restitution for direct, but no t indirect, economic

losses resulting from criminal conduct. In United States v. Vaknin, 112 F.3d 57 9 (1st Cir.

1997), the court interpreted the federal restitution statutes incorporated in the Victim Witness

                                                10
and Protection Act (VWPA), 18 U.S.C. §§ 3663(a) and 3664(a). The Vaknin court wrestled

with wh at it called “the causation quandary” because the federal restitution statutory scheme

had been interpreted to require restitution to be determined by the different standards of “but

for” causation and “direct” causation; each p arty in Vaknin advocated for one or the other.

112 F.3d at 58 6, 588. T his is the same ambiguity as fo und in the Arizona statutes and

addressed in Wilkinson. The Vaknin court concluded:

               [W]e hold that a modified but fo r standard o f causation is
               appropriate for restitution under the VW PA. This means, in
               effect, that the government must show not only that a particular
               loss would not have occurred but for the conduct underlying the
               offense of conviction, but also that the causal nexus between the
               conduct and the loss is not too attenuated (either factually or
               temporally). The watchword is reasonableness. A sentencing
               court should undertake an individualized inquiry; what constitutes
               sufficient causation can only be determined case by case, in a
               fact-specific probe.

112 F.3d at 589-90. We find the First Circuit’s “modified but for standard,” id., to be a

practical articulation of the Arizona standard and consistent with this state’s caselaw. See

Lindsley, 191 Ariz. at 198, 953 P.2d at 1251 (“‘but for’ cause . . . is a necessary but not

sufficient condition to restitution . . . the distinguishing feature is how directly the loss flows

from the crime”); see also State v. Ma drid, ___ Ariz. ___, ¶ 1, 85 P.3d 1054, 1055 (App.

2004) (upholding restitution awarded for “reasonable” expenses related to murder victim’s

children’s trial attendance). Accordingly, we apply that standard here.

¶19            Although the trial court only allowed a portion of ADOC’s claims for sack

lunches, it otherwise approved ADOC’s entire restitution request. In denying Gu illiams’s



                                                11
petition for post-con viction relief, w hich challen ged both whether ADOC could be a victim for

restitution purposes and whether “[t]he costs of investigation of an escape and the re capture

of an escapee are consequential damages and are not economic loss within the terms of

Arizona Law,” the trial court did not expres sly address the latter claim. H oweve r, in denying

the petition and affirming its restitution order, the court implicitly found that all of AD OC’s

costs of investigating Hummert’s escape and recapturing him were economic losses subject

to restitution. Applying a case-specific, modified but for standa rd based o n reasona bleness to

the facts as we understand them, we do not agree.

¶20            The limited record before us contains only a portion of the restitution hearing

transcript, and the trial court’s restitution order did not contain any detailed factual findings

on which it was based. Accordingly, we cannot determine the extent to which the restitution

order accurately reflects ADOC’s direct economic losses and those justifiab ly attributed to

Guilliams’s criminal conduct. We do, however, have a significant enough portion of that

transcript to determine that Guilliams’s argument had at least some merit. We also have

before us ADO C’s documen ts supporting its restitution request. Acco rdingly, we have a

sufficient record on which to make some preliminary observations.

¶21            Certain ly, any costs incu rred as a resu lt of damage to or unau thorized use of

ADOC property during an escape or escape attempt itself are direct costs of that escape.

Similarly, the costs of any extraordinary se curity practices a nd precau tions that are se t in

motion in immediate response to an escape—lockdown, roving patrols around the prison

perimeter, and the like—are also direct costs of the escape attem pt, in manp ower, eq uipment,

                                               12
and supplies, to the extent they are above and beyond the normal costs of operating the prison.

It appears that the portion of the res titution order accounting for $25,283.94 in prison

operations costs was based on costs the prison incurred on the day o f the escape , and prob ably

reflects extraordinary costs to the prison resulting from the escape. This part of the restitution

award was evidently based on an “escape apprehension costs” spreadsheet dated September 29,

2000, the day of the escape, w hich is part of the record before us. Acco rding to that d ocument,

the majority of the costs are personnel costs for overtime, indicating that these costs are

beyond the normal cost of operating the prison that day. 3

¶22            The justifiability of the remainder of the restitution award is less clear. Of the

amount the court allocated, $20,887.50 was itemized as costs incurred by the Criminal

Investigations Bureau.     Based on testimony at the restitution hearing and an ADOC

memorandum in the record, this figure was based on nearly 1,200 hours employees had

expended from the day Hummert escaped until several days after he was captured on or about

November 16, 2000. This part of the restitution award apparently included costs associated

in the memorandum with “conducting interview s,” “writing reports,” “c ollecting evidence,”

meetings with an “FBI task force” and the “Pinal County Att[orne]y’s office,” “evidence

submission” and “preparing the case [against both Hummert and Guilliams] for court

presentation,” “attempt[ing] to locate the person who sold a vehicle to Hummert,” and an


       3
       We note that the spreadsheet included entries for four prison administrators working
twenty or mo re hours ea ch on this day. It is not clear how all of these costs would be above
normal operating costs, unless those persons normally would not have been working on
September 29, 20 00, which w as a Friday.

                                               13
“attempt to interview Hummert in Eugene Or[egon]” after he had been a pprehended b y the FBI.

An additional $1,455.11 restitution was allocated toward hotel, airfare, and other costs

incurred by ADO C investigators in traveling to Oregon to attempt to conduct those interviews.4

¶23             Although these ADOC investigators certainly would not have devoted these

hours to Hummert’s case but for Guilliams’s criminal actions, many of these costs were

attenuated from Gu illiams’s criminal act, tem porally if not factually. In other words, we see

a difference, in this case at least, between extraordinary costs directly resulting from an escape

and attenuated costs incurred in inve stigating an escape that has be en successful. We are

struck by how m ost of these latter costs are similar to, if not indistinguishable from, the

normal costs of investigating any crime and arresting and capturing the suspect. Indeed,

extending the state’s argument to its logical conclusion, the FBI and the Pinal C ounty

Attorney’s office are also arguably entitled to restitution for their costs in the Hummert case.

For that matter, so is the jail, the superior court, the p robation de partment, and even this court.

We decline to construe the restitution laws to encompass costs incurred by governmental

entities that are performing their routine functions, regardless of whether those costs can be

traced back to a criminal act. Mo reover, nothing in the record establishes that the employee-

related costs incurred by the Criminal Investigations Bureau in this case were based on

overtime or were otherwise above and beyond the normal costs of prison operation. Although




       4
         We leav e to the trial court’s sound discretion the task of determinin g wheth er and to
what extent travel costs are justifiable and amenable to restitution under the guidelines we set
out, infra.

                                                 14
the escape un doubtedly created additional burdens for ADO C personnel, if these inve stigators

would otherwise have b een earning the same salary or wages working on different cases or

projects, these costs do not represent a measurable econom ic loss to ADO C.

¶24            There is a paucity of caselaw on this point. In State v. Jones, 724 P.2d 146, 148

(Kan. Ct. App. 1986), the court was presented with the question whether a Kansas statute,

which authorized “restitution to the agg rieved party for the damage or loss caused by the

defendant’s crime,” pro vided for restitution to the S tate of Kansas from a prison escapee for

costs incurred in capturing the escaped prisoner. The court found no bar to considering a

governmental unit an a ggrieved party for purposes of the statute, as we have, but concluded that

“the legislature did not intend that the manpower costs incurred to capture an escaped prisoner

be subject to a court order that a defendant reimburse the State.” Id. We find this to be a

sensible approach.

¶25            Certainly, the distinction between an escape in progress and one that has been

successfully accomplish ed will often be mu rky; it will not always be clear when a trail has gone

cold. But a “reasonableness” standard for attenuated causation is well-suited to guide any such

line drawing , and, as w ith any such d iscretionary de cision entrus ted to the trial court, our

review will be deferential. See Madrid, ___ Ar iz. ___, ¶ 5 , 85 P.3d at 1056 (in assigning

restitution, trial court has “substantial discretion” in determ ining amount of econ omic loss).

¶26            Finally, we find the state’s reliance on State v. Maupin , 166 Ariz. 250, 801 P.2d

485 (App. 1990 ), misplaced. The cou rt in Maupin held that the trial court had authority under

§ 13-804 to order the de fendant to p ay his extradition costs as part of his sentence when the

                                               15
defendant had stipulated to do so in the plea agreement, notwithstanding that the court

technically had not de signated tho se costs as a fin e. Althou gh Guilliams agreed to pay

restitution up to one million dollars as a term of his plea agreement, nothing in that provision

suggests that he agreed to pay any restitutio n not wa rranted by A rizona law , and he cle arly did

not stipulate to pay for the costs associated with Hummert’s apprehension. Guilliams opposed

the restitution sought by the state both before it was ordered and in post-conviction relief

proceedings, and in neither of the state’s responses did it ever suggest that Guilliams had

agreed to pay restitution unconditionally as a term of the plea agreement. See In re Maricopa

County Juvenile Action No. JV-128676, 177 Ariz. 352, 868 P.2d 365 (App. 1994) (provision

in plea agreement in which juvenile agreed to pay restitution up to a maximum of $750 if found

legally responsible for the damages was not an unc onditional agreement to pa y restitution).

Accordingly, Maupin is not dispositive. Moreov er, as Guilliams correctly notes, Maupin also

held that the state may not recover extradition costs through restitution ordered under the

authority of § 13-603(C).

                                           Disposition

¶27            “When an appellate court cannot determine the basis of the restitution order

from the record, the proper remedy is to vacate that portion of the sentence, and remand to the

trial court to reconsider the propriety of the restitution order and to specify the b asis for its

determination.” State v. Iniguez, 169 Ariz. 538, 5 35, 821 P.2d 194, 199 (A pp. 1991).

Accordingly, we vacate the trial court’s $47,626.55 restitution order in favor of ADOC and

remand for a redetermina tion of that order consistent with this de cision.

                                                16
¶28        We grant the petition for rev iew, and we grant partial relief.




                                            PHILIP G. ESPINOSA, Chief Judge

CONCURRING:




JOHN PELANDER, Presiding Judge




PETER J. ECKERSTROM, Judge




                                           17
