                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                       STATE OF ARIZONA, Appellee,

                                        v.

                  LOUIS CHARLES JACKSON, Appellant.

                             No. 1 CA-CR 17-0338
                              FILED 3-22-2018


           Appeal from the Superior Court in Maricopa County
                        No. CR2014-127700-001
               The Honorable John Christian Rea, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jillian Francis
Counsel for Appellee

Maricopa County Legal Defender’s Office, Phoenix
By Cynthia D. Beck
Counsel for Appellant
                            STATE v. JACKSON
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge James B. Morse Jr. joined.


J O N E S, Judge:

¶1             Louis Jackson appeals the trial court’s criminal restitution
order, arguing the court lacked jurisdiction to increase the amount of
restitution because the request was not made until nearly a year after the
court revoked Jackson’s probation and sentenced him to 2.5 years’
imprisonment. Alternatively, Jackson argues the victim waived the claim
for restitution because the request was untimely. We hold the court had
jurisdiction to order additional restitution and did not abuse its discretion
when it did so. Accordingly, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2            On June 8, 2014, Phoenix police working security at the
Phoenix Convention Center responded to reports of an individual, later
identified as Jackson, acting violently and yelling.1 The officers asked
Jackson to leave the area, but he refused and resisted the officers’ attempts
to remove him. During the altercation, Jackson bit an officer on his left
hand, drawing blood. The officer also suffered injuries to his wrist, elbow,
and shoulder. Other officers ultimately detained and arrested Jackson.

¶3             Immediately after the incident, the injured officer received
medical treatment for the bite wound and was cleared to return to work the
same day. However, complaining of worsening pain in his shoulder, the
officer went to a follow-up appointment three days later. The officer also
received four weeks of physical therapy for his shoulder injury, and the
total cost of his medical treatment was $4,705.45. The officer paid $800 and
his employer, the City of Phoenix (the City), paid the remaining $3,905.45.




1      We view the facts in the light most favorable to upholding the
restitution order. State v. Lewis, 222 Ariz. 321, 323, ¶ 2 (App. 2009) (citing In
re Andrew A., 203 Ariz. 585, 586, ¶ 5 (App. 2002)).


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                            STATE v. JACKSON
                            Decision of the Court



¶4             In December 2014, a jury convicted Jackson of one count of
aggravated assault and one count of resisting arrest. The trial court
suspended his sentence and placed him on probation for two years. The
State requested $800 in restitution for the injured officer, but did not request
restitution for the City’s expenses. Jackson stipulated to the State’s $800
request. In February, June, and November 2015, the State petitioned to
revoke Jackson’s probation, alleging probation violations. Each time, the
trial court reinstated Jackson on probation and affirmed the $800 restitution
order as a term of probation. In April 2016, the State filed a fourth petition,
and in May 2016, the court revoked Jackson’s probation and sentenced him
to 2.5 years’ imprisonment. The State did not request any additional
restitution, and the court again affirmed the prior $800 order.

¶5            Three months after sentencing, the State emailed defense
counsel requesting Jackson stipulate to additional restitution for the City’s
expenses. Jackson declined to do so. In December 2016, the State requested
a restitution hearing, and Jackson objected, arguing the State’s restitution
request was untimely. The trial court granted the hearing, which occurred
in May 2017.

¶6             At the hearing, the officer testified regarding his injuries, and
the State presented documents showing workers’ compensation covered
$3,905.45 of the medical costs. Although Jackson did not present evidence
or witnesses at the hearing, he again raised his timeliness objection, alleging
the State knew about the City’s expenses at least a year before requesting
the restitution hearing and well before the court revoked Jackson’s
probation. Jackson also argued that the State failed to show Jackson caused
the officer’s shoulder injury. The State did not address defense counsel’s
timeliness argument; nor did it address when it first knew about the
medical expenses. The trial court granted the restitution request, relying
upon the medical records introduced by the State, but did not explicitly
address Jackson’s timeliness argument. Jackson timely appealed, and we
have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) §§ 12-
120.21(A)(1),2 13-4031, and -4033(A)(3). See Hoffman v. Chandler ex rel. Cty.
of Pima, 231 Ariz. 362, 363, ¶¶ 7, 16 (2013) (noting a restitution order
imposed after a trial is a post-judgment order affecting the defendant’s
substantial rights).



2     Absent material changes from the relevant date, we cite a statute’s
current version.


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                            STATE v. JACKSON
                            Decision of the Court

                                DISCUSSION

¶7             On appeal, Jackson argues the State’s restitution request was
untimely and the trial court lacked jurisdiction to order the additional
restitution. We review a trial court’s jurisdiction to order restitution de novo.
State v. Zaputil, 220 Ariz. 425, 427, ¶ 7 (App. 2008) (citing In re Stephanie N.,
210 Ariz. 317, 318, ¶ 5 (App. 2005)). We review the timeliness of a request
for criminal restitution for an abuse of discretion. See State v. Nuckols, 229
Ariz. 266, 268, ¶ 6 (App. 2012) (citing State v. Lewis, 222 Ariz. 321, 323, ¶ 5
(App. 2009).

I.     Jurisdiction

¶8            The trial court’s jurisdiction over restitution is set by statute.
Pursuant to A.R.S. § 13-603(C), a court “shall require the convicted person
to make restitution to the . . . victim of the crime . . . in the full amount of
the economic loss as determined by the court.”

¶9              Jackson argues the trial court lost jurisdiction once it
sentenced him. In doing so, he relies upon State v. Barrs, in which this Court
stated: “Restitution is part of a defendant’s sentence, and must be set forth
in the oral pronouncement of sentence.” 172 Ariz. 42, 43 (App. 1992)
(citations omitted). There, we vacated a restitution order that was included
in the minute entry of the sentencing proceedings but not imposed orally
in open court. Id. The issue was not, however, the timing of the order, but
rather, that it was not imposed “in open court with the defendant present.”
Id. (quoting State v. Powers, 154 Ariz. 291, 295 (1987)).

¶10             Moreover, more recent cases have clarified that although
restitution is often ordered as part of the sentencing process, A.R.S. § 13-
603(C) “is silent as to when restitution must be assessed.” State v. Holguin,
177 Ariz. 589, 591 (App. 1993) (citations omitted). Indeed, restitution is
designed to make the victim whole, rather than punish the defendant, and
is therefore not part of the sentence. See Ariz. R. Crim. P. 26.1(c) (defining
“sentence” to mean “the court’s pronouncement of the penalty imposed on
the defendant after a judgment of guilty”); State v. Grijalva, 242 Ariz. 72, 73,
¶ 8 (App. 2017) (holding a post-judgment restitution order “did not
constitute a modification or correction of a sentence and judgment”); State
v. Cota, 234 Ariz. 180, 184, ¶¶ 10-12 (App. 2014) (noting the purpose of
restitution is to make the victim whole and does not increase punishment);
Zaputil, 220 Ariz. at 428, ¶ 11 (“[E]ven though it is part of the sentencing
process, restitution is not a penalty or a disability.”).




                                       4
                           STATE v. JACKSON
                           Decision of the Court

¶11            Finally, pursuant to A.R.S. § 13-805(A), a trial court retains
jurisdiction “for purposes of ordering, modifying and enforcing the manner
in which court-ordered payments are made until paid in full or until the
defendant’s sentence expires.” This statute has been interpreted broadly to
expand, rather than limit, the court’s jurisdiction over restitution. State v.
Pinto, 179 Ariz. 593, 596 (App. 1994).

¶12           Because A.R.S. § 13-603(C) is silent as to when restitution
must be assessed, and A.R.S. § 13-805 grants the trial court jurisdiction
“until [court-ordered payments] are paid in full or until the defendant’s
sentence expires,” we hold the court here retained jurisdiction to impose
additional restitution because Jackson’s sentence had not yet expired.

II.    Timeliness

¶13            Jackson also argues the trial court erred by imposing
restitution because the City waited to file its request until after his
sentencing. As with jurisdiction, A.R.S. § 13-603(C) is silent as to when, if
ever, a restitution request is untimely while a defendant is still serving the
sentence. However, we do not need to decide this issue because Jackson
failed to prove actual prejudice.

¶14            In State v. Unkefer, which Jackson relies upon, this Court
emphasized that to establish error in a restitution order entered after a
defendant’s sentence had expired, “a defendant must do much more than
just claim he or she has suffered prejudice; a defendant bears the burden of
proving actual prejudice.” 225 Ariz. 430, 436, ¶ 24 (App. 2010), disapproved
in part on other grounds by Hoffman, 231 Ariz. at 365, ¶ 14. Here, Jackson
failed to allege, let alone prove, actual prejudice. Moreover, the record
reflects the State first advised Jackson’s counsel it intended to seek
restitution for the City only three months after Jackson had been sentenced,
and filed a request with the trial court six months after sentencing. The
court granted an evidentiary hearing on the request and provided Jackson
notice of the hearing. Jackson had an opportunity to challenge the
sufficiency of the State’s evidence and to present his own evidence.
Additionally, he had a separate right of appeal from the criminal restitution
order. See A.R.S. § 13-4033(A)(3); Hoffman, 231 Ariz. at 363, ¶¶ 7, 16. Under
these facts, Jackson fails to show he was prejudiced by the City’s delay in
requesting restitution, and we find no error.




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                      STATE v. JACKSON
                      Decision of the Court


                        CONCLUSION

¶15      Accordingly, we affirm the trial court’s criminal restitution
order.




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