                             IN THE
             ARIZONA COURT OF APPEALS
                          DIVISION TWO


                      THE STATE OF ARIZONA,
                             Appellee,

                                v.

                       SUMMER LYNN LEON,
                           Appellant.

                      No. 2 CA-CR 2015-0019
                       Filed August 29, 2016


         Appeal from the Superior Court in Pima County
                      No. CR20131300001
           The Honorable Richard D. Nichols, Judge

                           AFFIRMED


                            COUNSEL

Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Jonathan Bass, Assistant Attorney General, Tucson
Counsel for Appellee

Steven R. Sonenberg, Pima County Public Defender
By Erin K. Sutherland, Assistant Public Defender, Tucson
Counsel for Appellant
                           STATE v. LEON
                          Opinion of the Court


                          OPINION
Judge Espinosa authored the opinion of the Court, in which
Presiding Judge Howard and Judge Staring concurred.


E S P I N O S A, Judge:

¶1           After a jury trial, Summer Lynn Leon was convicted of
theft of property or services, computer tampering, and fraudulent
scheme and artifice. The jury expressly found the property that was
the subject of the theft had a value of “$25,000 or more, but less than
$100,000.” The trial court suspended the imposition of sentence and
placed Leon on concurrent probation terms of seven years and
ordered her to serve thirty days in jail as a condition of that
probation. After a hearing, the court also ordered restitution
totaling $195,670. On appeal, Leon contends the court violated her
constitutional rights by ordering restitution in excess of the jury‘s
verdict. For the following reasons, we affirm.

                Factual and Procedural Background

¶2            We view the evidence relating to restitution in the light
most favorable to sustaining the trial court’s order. State v. Lewis,
222 Ariz. 321, ¶ 5, 214 P.3d 409, 412 (App. 2009). In 2004, Leon was
hired as a part-time collections agent for Desert Sports and Fitness
Holdings (DSF).       She eventually was promoted to corporate
manager, where she supervised payroll, bookkeeping, and account
collections. In mid-2011, an outside company was contracted to
audit DSF’s accounts receivable, which required implementing a
new system. Leon was resistant to assisting in its implementation.
And on the morning of the conversion to the new system, she
telephoned the owner to inform him she had “decided to quit,”
citing child-care issues.

¶3           About two months after Leon’s departure, DSF received
notice from the Department of Economic Security that Leon had
filed seven unemployment claims. DSF’s owner was “surprised” by
the number of claims, but “didn’t think much of it” because Leon
had voluntarily resigned. However, in July 2012, as a result of an


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                           STATE v. LEON
                          Opinion of the Court

Internal Revenue Service audit of Leon’s federal W-2 forms, it was
discovered that from April 2010 to December 2011, Leon had
generated over one hundred extra paychecks from DSF, which had
been deposited into her bank account. The total taken exceeded
$200,000. The matter was reported to the Tucson Police Department,
and Leon was arrested and charged with theft of property “valued
at $25,000 or more,” computer tampering, and fraudulent scheme
and artifice.

¶4            The jury convicted Leon on all counts and, as noted
above, found the property valued between $25,000 and $100,000.
The trial court sentenced her as previously described and scheduled
a restitution hearing. After hearing testimony and taking the matter
under advisement, the court awarded DSF restitution in the amount
of $195,670. Leon appealed the restitution order, and we have
jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031 and
13-4033.

                           Restitution Order

¶5          Leon contends, for the first time on appeal, that the
imposition of restitution in excess of the loss determined by the jury
violated her “state and federal constitutional right to have a jury
determine all factors affecting the minimum or maximum sentence
that could be imposed.” Specifically, she argues that because the
jury found her guilty of theft under $100,000, the trial court was
prohibited from ordering restitution in excess of that amount
pursuant to “Apprendi and its progeny.”1

¶6            We generally review a trial court’s restitution order for
an abuse of discretion. Lewis, 222 Ariz. 321, ¶ 5, 214 P.3d at 411.
Although Leon challenged the restitution award below, she failed to
raise the specific constitutional argument she now urges.
Consequently, we review for fundamental, prejudicial error. See id.
¶ 13; see also State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601,
607 (2005) (fundamental error review applies to constitutional claims
first raised on appeal). But to the extent our decision rests on a


      1Apprendi   v. New Jersey, 530 U.S. 466 (2000).


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                          STATE v. LEON
                         Opinion of the Court

question of law, our review to determine whether any legal error
occurred is de novo. Id. n.2; see also Coleman v. Johnsen, 235 Ariz. 195,
¶ 6, 330 P.3d 952, 953 (2014) (applying de novo review to
constitutional issues).

¶7            Upon conviction, a defendant is required to “make
restitution to the person who is the victim of the crime . . . in the full
amount of the economic loss as determined by the court.”
A.R.S. § 13-603(C); see also Ariz. Const. art. II, § 2.1(A)(8) (victim has
right to “prompt restitution” from “person . . . convicted of the
criminal conduct that caused the victim’s loss”). An “‘[e]conomic
loss’ [is] any loss incurred by a person as a result of the commission
of an offense . . . that would not have been incurred but for the
offense.” A.R.S. § 13-105(16); see also A.R.S. § 13-804(B) (court “shall
consider all losses caused by the criminal offense or offenses for
which the defendant has been convicted”). The state must establish
restitution by a preponderance of the evidence, In re Stephanie B.,
204 Ariz. 466, ¶ 15, 65 P.3d 114, 118 (App. 2003), and it may only be
imposed “on charges for which a defendant has been found guilty,
to which he has admitted, or for which he has agreed to pay,”
State v. Garcia, 176 Ariz. 231, 236, 860 P.2d 498, 503 (App. 1993).

¶8            Leon does not dispute that DSF was entitled to
restitution, but asserts the trial court violated her Sixth Amendment
right to a jury trial by ordering restitution in excess of the jury
verdict, in contravention of Apprendi and Southern Union Co. v.
United States, ___ U.S. ___, 132 S. Ct. 2344 (2012). In Apprendi, the
Court held, “[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” 530 U.S. at 490. Subsequently, Blakely v.
Washington, 542 U.S. 296, 303, 308 (2004), clarified that Apprendi
created a bright-line rule prohibiting the trial court from imposing a
sentence beyond the “maximum sentence it may impose solely on
the basis of the facts reflected in the jury verdict or admitted by the
defendant.” More recently, the Court expanded the Apprendi rule to
fact-finding in the context of criminal fines. See S. Union Co., 132
S. Ct. at 2348-50 (jury must determine facts establishing criminal
fine).


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                          STATE v. LEON
                         Opinion of the Court

¶9           Leon acknowledges that no court has applied Apprendi
to restitution awards but argues for its expansion, contending
Arizona courts have mischaracterized restitution as a civil remedy,
and that it “is actually a punishment” requiring “jury determination
of the amount . . . owed.” Cf. id. at 2350-51 (Apprendi and Sixth
Amendment right to jury trial only “triggered” when punishment
imposed). In support, Leon discusses the “harmful consequences”
of restitution and notes that Arizona has adopted the minority
position on this issue, citing twenty-three jurisdictions that have
determined “restitution is punitive.”

¶10           In Arizona, the courts have uniformly concluded that
restitution’s primary purpose is not penal in nature. See Town of
Gilbert Prosecutor’s Office v. Downie, 218 Ariz. 466, ¶ 13, 189 P.3d 393,
396 (2008) (“Restitution is not meant to penalize the defendant; that
function is served by incarceration, fines, or probation.”); State v.
Cota, 234 Ariz. 180, ¶ 11, 319 P.3d 242, 246 (App. 2014) (purpose of
restitution not to punish); State v. Zaputil, 220 Ariz. 425, ¶ 11, 207
P.3d 678, 681 (App. 2008) (“restitution is not a penalty or a
disability”); State v. Fancher, 169 Ariz. 266, 268, 818 P.2d 251, 253
(App. 1991) (restitution to victim of crime is not criminal
punishment exacted by the state). Instead, the “primary purposes of
restitution” are “reparation to the victim and rehabilitation of the
offender.” State v. Wilkinson, 202 Ariz. 27, ¶ 13, 39 P.3d 1131, 1134
(2002); cf. United States v. Behrman, 235 F.3d 1049, 1054 (7th Cir. 2000)
(direct victim restitution appropriately substitutes for civil remedy
so crime victims need not file separate civil lawsuits).

¶11         Even were we able to depart from our well-established
precedent, see State v. Sang Le, 221 Ariz. 580, ¶ 4, 212 P.3d 918, 919
(App. 2009) (intermediate appellate court must follow law as
articulated by supreme court), Leon has presented nothing that
would persuade us to do so. 2 The trial court’s award was duly


      2We   also decline Leon’s invitation to evaluate the “harmful
consequences” restitution imposes on defendants. As the state
notes, the law and effects of restitution have been “thoroughly
analyzed” by our courts, and we see no reason to revisit our state’s
public policy here, given our limited review and the clear purpose of

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                          STATE v. LEON
                         Opinion of the Court

limited to the economic loss DSF actually incurred as a result of
Leon’s theft. See § 13-603(C); see also § 13-105(16). Notably, Leon
does not dispute that finding. And in calculating restitution, the
court subtracted the amount DSF had already recovered from
insurance proceeds. Thus, the purpose and focus of the award was
not to punish Leon for the crime she committed, but instead was
clearly designed to make DSF whole. See State v. Guilliams, 208 Ariz.
48, ¶ 12, 90 P.3d 785, 789 (App. 2004).

¶12          Finally, even were we to conclude restitution should be
regarded as punishment, Apprendi still would not control because,
unlike a fine, victim restitution is not subject to a statutory
maximum. Compare § 13-603(C) (defendant must make restitution to
victim “in the full amount of the economic loss”), with § 13-801(A)
(felony fine shall not exceed $150,000); cf. S. Union Co., 132 S. Ct. at
2354-55 (applying Apprendi to criminal fine imposed in excess of
statutory maximum). Apprendi and its progeny require a jury to find
any fact that either increases a sentence beyond the statutory
maximum or increases a mandatory minimum sentence.
See Apprendi, 530 U.S. at 490 (any fact increasing sentence beyond
statutory maximum must be submitted to jury); Alleyne v. United
States, ___ U.S. ___, ___, 133 S. Ct. 2151, 2155 (2013) (any fact
increasing mandatory minimum sentence must be submitted to
jury). Because there is no “statutory maximum” or “mandatory
minimum” applying to restitution that can be ordered under § 13-
603(C), we conclude the Apprendi rule is inapplicable. Although
Leon asserts other “courts are beginning to recognize that Apprendi
might apply to restitution in light of Southern Union” and argues we
should extend its application here, she has not presented us with
any authority on which to do so. See State v. Keith, 211 Ariz. 436, ¶ 3,
122 P.3d 229, 230 (App. 2005) (appellate court will not anticipate
how Supreme Court may rule in the future).


the trial court’s award. See State ex rel. Romley v. Gaines, 205 Ariz.
138, ¶ 19, 67 P.3d 734, 740 (App. 2003) (public policy issues firmly in
the province of the legislature, not the court of appeals);
cf. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d at 607 (scope of review for
fundamental error is limited).


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                         STATE v. LEON
                        Opinion of the Court

                            Conclusion

¶13          Because restitution is neither a penalty nor subject to a
statutory maximum, and because the Apprendi rule does not apply
here, the trial court did not err in imposing restitution in excess of
the jury verdict. See Fancher, 169 Ariz. at 268, 818 P.2d at 253
(restitution not limited to value range of specific crime of which
defendant was convicted). Accordingly, the trial court’s restitution
award is affirmed.




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