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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                                        v.

                    JERRY ROBERT HAYES, II, Appellee.

                             No. 1 CA-CR 16-0463
                               FILED 7-18-2017


          Appeal from the Superior Court in Maricopa County
                     No. CR2015-110370-001 DT
          The Honorable Laura J. Giaquinto, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Diane M. Meloche
Counsel for Appellant

Maricopa County Public Defender’s Office, Phoenix
By Tennie B. Martin
Counsel for Appellee

Law Office of Richard D. Coffinger, Glendale
By Richard D. Coffinger
Counsel for Victim Koppy’s Towing
                             STATE v. HAYES
                            Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Kenton D. Jones and Judge Patricia K. Norris1 joined.


W I N T H R O P, Presiding Judge:

¶1             Koppy’s Motors, Inc. d/b/a Koppy’s Body Shop and Towing
(“Koppy’s”) argues through an appeal by the State of Arizona that the
superior court erred in denying Koppy’s request for an additional $24,000
in restitution. Finding no error, we affirm.

                FACTS AND PROCEDURAL HISTORY2

¶2            In September 2014, Jerry Robert Hayes drove his vehicle into
a Koppy’s tow truck loading a disabled vehicle on the shoulder of the road.
The Maricopa County Attorney’s Office (“MCAO”) charged Hayes with
endangerment, two counts of DUI, and one count of extreme DUI. Hayes
entered a plea agreement, pleading guilty to endangerment, a class six
felony, and DUI, a class one misdemeanor, in exchange for dismissal of the
other counts and an allegation of dangerousness. As part of the agreement,
Hayes agreed to pay restitution of economic loss to all victims3 and was
placed on concurrent terms of three years’ supervised probation, including
four months (flat time) in jail.

¶3          Koppy’s sought restitution as a crime victim, and the MCAO
requested a restitution hearing. Through private counsel, Koppy’s


1      The Honorable Patricia K. Norris, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article 6, Section 3, of the Arizona Constitution.

2       We view the facts in the light most favorable to sustaining the verdict
and resolve all reasonable inferences against the appellant. See State v.
Kiper, 181 Ariz. 62, 64, 887 P.2d 592, 594 (App. 1994).

3       The plea agreement also addressed insurance: “The defendant
[Hayes] shall pay restitution for all economic loss to all victims . . . and/or
their insurance companies . . . .”



                                      2
                             STATE v. HAYES
                            Decision of the Court

submitted a “Crime Victim’s Statement,” requesting restitution in the
amount of $59,381.50—an amount not reduced by the $24,000 Koppy’s had
already received from its insurer, North America Risk Services, Inc.
(“NARS”), for insured property damage. Koppy’s argued that Hayes
should not receive a credit against the restitution award for money received
from NARS. Hayes agreed to stipulate he owed $35,381.50—the amount of
restitution sought minus the $24,000 Koppy’s had received from NARS.4

¶4           At the conclusion of the restitution hearing, the superior court
ordered Hayes to pay the stipulated restitution amount of $35,381.50, and
took the matter of the disputed $24,000 under advisement. The court later
denied Koppy’s request for the additional $24,000. At Koppy’s request, the
MCAO (on behalf of the State) filed a timely notice of appeal.

¶5            The MCAO did not file briefs in this case,5 however, and
Koppy’s filed a purported stipulation for substitution of private counsel in
place of counsel for the MCAO. Recognizing the attempted substitution of
counsel was not permissible, see Lindsay R. v. Cohen, 236 Ariz. 565, 567, ¶ 8,
343 P.3d 435, 437 (App. 2015), this court’s Department M issued an order
on December 19, 2016, striking the purported stipulation for substitution of
counsel but allowing Koppy’s to file briefs through private counsel.6

¶6            We have jurisdiction over the MCAO’s timely appeal. See
Ariz. Const. art. 6, § 9; Ariz. Rev. Stat. (“A.R.S.”) §§ 12–120.21(A)(1) (2016),
13–4031 (2010), 13–4032(4) (2010).

                                 ANALYSIS

¶7           Koppy’s argues the superior court erred by reducing the
amount of restitution due Koppy’s based on the insurance payment
Koppy’s received from a collateral source (its insurance company, NARS).



4      The MCAO also filed a memorandum of law regarding restitution.

5   After this court scheduled an order to show cause hearing, the
MCAO advised the court of its intent not to file an opening brief.

6      Hayes neither objected to the December 19 order nor moved for
reconsideration; accordingly, he has waived any challenge to the order,
which renders moot his arguments challenging the propriety of Koppy’s
briefing.



                                       3
                              STATE v. HAYES
                             Decision of the Court

¶8              In general, we review restitution orders for an abuse of
discretion. State v. Lewis, 222 Ariz. 321, 323, ¶ 5, 214 P.3d 409, 411 (App.
2009). However, we review de novo questions of statutory interpretation.
Id. at 324 n.2, ¶ 5, 214 P.3d at 412 n.2; State v. Ceasar, 241 Ariz. 66, 69, ¶ 11,
383 P.3d 1140, 1143 (App. 2016).

¶9             A person convicted of a criminal offense is required to pay
restitution to a victim of the crime “in the full amount of the economic loss
as determined by the court.” A.R.S. § 13-603(C) (2010); see also A.R.S. § 13-
804(A) (Supp. 2016)7 (providing the superior court has discretion to “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 caused
by the defendant’s conduct”). 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.” A.R.S. § 13-804(B).

¶10            A loss is recoverable as restitution if it meets three
requirements: (1) the loss must be economic, (2) the loss must be one that
the victim would not have incurred but for the criminal conduct, and (3) the
criminal conduct must directly cause the economic loss. State v. Wilkinson,
202 Ariz. 27, 29, ¶ 7, 39 P.3d 1131, 1133 (2002).

¶11            A “loss,” for purposes of restitution, is the something out of
pocket actually suffered by the victim, and “if a victim receives
compensation from a collateral source to recover economic loss caused by
criminal conduct, the court must reduce the victim’s recovery by that
amount.” Town of Gilbert Prosecutor’s Office v. Downie ex rel. County of
Maricopa (Matykiewicz), 218 Ariz. 466, 469, ¶ 11, 189 P.3d 393, 396 (2008)
(citing A.R.S. § 13-804(E)). This requirement of reducing a victim’s recovery
for sums already received reflects the legislature’s intent that a victim’s loss
reflect benefits already conferred. Id.

¶12           In this case, Koppy’s requested $59,381.50, based upon a
calculation of the gross cost to repair its tow truck ($30,219.41), plus its
estimate of the gross lost profits from inability to use the tow truck
($46,900), minus a payment received from Hayes’ insurance company
($5,000), unpaid sales tax ($1,012.91), and recouped profits from a
replacement tow truck ($11,725). Koppy’s did not include within its


7       Section 13-804’s most recent amendments became effective
September 13, 2013. See 2013 Ariz. Sess. Laws, ch. 19, § 1 (1st Reg. Sess.).
Because no amendments material to our analysis have since occurred, we
cite the current version of the statute.


                                        4
                            STATE v. HAYES
                           Decision of the Court

calculation the $24,000 received from its own insurance claim. However,
Koppy’s can no longer be considered “out” that amount given its receipt of
the insurance proceeds, and the total amount of restitution sought must
therefore be reduced by that sum. Hayes agreed to pay the amount of
Koppy’s actual out-of-pocket loss and is entitled to consideration of the
money Koppy’s received from NARS as reducing Koppy’s actual amount
of loss. See id. Thus, Hayes should be credited the $24,000 and only
required to pay the balance of Koppy’s out-of-pocket loss, or $35,381.50.

¶13            Moreover, awarding Koppy’s an additional $24,000 would
create a windfall for Koppy’s; its overall financial circumstance would have
been improved solely by virtue of the accident beyond where it was
immediately before the accident. However, the purpose of restitution is not
to punish, but to make the victim whole, and restitution should not create
a windfall for the victim. State v. Iniguez, 169 Ariz. 533, 537, 821 P.2d 194,
198 (App. 1991) (“[T[he statutory scheme contains no hint that the
Legislature intended to go beyond full compensation and confer a
windfall.”); see also A.R.S. § 13-804(E) (“If a victim has received
reimbursement for the victim’s economic loss from an insurance company,
. . . the court shall order the defendant to pay the restitution to that
entity.”).8 To award Koppy’s an additional $24,000 would create a windfall
and allow Koppy’s to benefit from the crime, a result not supported by the
statutory scheme and the purposes of restitution.9 Further, doing so would
leave Koppy’s insurance company, NARS, without restitution, which
would mean that under A.R.S. § 13-804(E), Hayes would still be responsible
for paying NARS $24,000. The statutory restitution scheme requires a
defendant to pay the “full economic loss,” not double the full economic loss.




8      NARS did not file a restitution claim or appear below as a “victim,”
and no party on appeal has argued that the superior court’s order is
reversible because it didn’t require Hayes to reimburse NARS rather than
Koppy’s.

9      Of course, the restitution order would not preclude the bringing of a
separate civil action if such was determined to remain viable. See
Matykiewicz, 218 Ariz. at 472, ¶ 28, 189 P.3d at 399; A.R.S. § 13-807 (Supp.
2016).


                                      5
                    STATE v. HAYES
                   Decision of the Court

                      CONCLUSION

¶14   The superior court’s restitution order is affirmed.




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




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