Christina M. Phillis
Arizona Bar Membership No. 014871
Maricopa County Juvenile Public Defender
Office of the Maricopa County Juvenile Public Defender
777 W. Southern Ave., Bldg. A, Ste. 101
Mesa, Arizona 85210
Telephone (602) 372-2815
Fax (602) 372-6888
IN THE ARIZONA SUPREME COURT
In the Matter of PETITION TO ) R-09-0001
AMEND RULE 31.6, ARIZONA )
RULES OF CRIMINAL )
PROCEDURE, AND RULE 103, ) COMMENT ON PETITION
RULES OF PROCEDURE FOR )
JUVENILE COURT )
On behalf of the Office of the Maricopa County Juvenile Public Defender and for the reasons set forth below, the undersigned attorney disagrees with the proposed change to Rule 31.6 of the Arizona Rules of Criminal Procedure and Rule 103 of the Rules of Procedure for Juvenile Court set forth in Petition No. R-09-0001.
The petition proposes amendments to Rule 31.6 of the Arizona Rules of Criminal Procedure and Rule 103 of the Rules of Procedure for Juvenile Court requiring the disbursement of restitution payments collected by the court to victims while an appeal is pending unless the defendant demonstrates to the court sufficient grounds for a stay of the restitution order. Currently, during the pendency of an appeal, Rule 103(B) of the Rules of Procedure for Juvenile Court requires the appellant to make restitution payments to the court but prohibits the court from disbursing the payments to the victim and A.R.S. 13-804(D) permits the criminal court to hold disbursement of restitution. The money is disbursed to the victim or the appellant upon a ruling from the court of appeals.
The proposed rule amendment requires the court to disburse payments to the victim unless the appellant can demonstrate to the court by a preponderance of the evidence reasonable grounds to believe the conviction may be set aside or the restitution order reduced or vacated. The petition proposing the amendment compares the stay of restitution disbursement to the delay of imprisonment pending an appeal. However, the two issues are markedly different.
While an appeal is pending the appellant is subject to the sentence or disposition imposed by the judge unless the appellant can demonstrate reasonable grounds to believe that the conviction will be set aside. Rule 7.2(c), Rules of Criminal Procedure, otherwise a convicted person is required to the complete sentence ordered by the judge, including restitution, while the appeal is pending. Id. Thus, the presumption is that the consequences imposed by the judge are not stayed.
However, the court may stay the disbursement of restitution to the victim while an appeal pending. Otherwise, once funds are disbursed to the victim the court would be unable to recoup the money if the order of restitution was overturned or modified on appeal. Thus, the victim would be unjustly enriched and the appellant would have no mechanism to retrieve payment.
The Arizona legislature balanced the issue of a victim’s right to prompt restitution and a defendant’s right to appeal a restitution order when it enacted A.R.S. 13-804(D). State v. Hansen, 215 Ariz 287, 160 P.3d 166 (2007). In State v. Hansen, the Arizona Supreme Court found that the legislature permissibly enacted A.R. S. 13-804(D) within its limited rulemaking authority under the Victim’s Bill of Rights. Id at 290, 160 P.3d at 170. The legislature, after taking into consideration a victim’s and a defendant’s rights, chose to permit the court to stay disbursement of restitution pending an appeal. The proposed rule change would affect this balance of rights by requiring the defendant to establish by a preponderance of the evidence that the conviction or adjudication will be overturned on appeal or the restitution order may be reduced or vacated; a prohibitively difficult task.
If restitution is disbursed to the victim and then the appellant prevails upon appeal, there exists no reasonable means by which the appellant may recover funds. The victim is not a party in the appeal. An appellant could bring separate civil action and sue the victim. However, in that event, the victim could argue that he did nothing wrong in accepting funds sent by the clerk of the superior court. However, if the appellant fails to pay restitution, the appellant may be prosecuted for violating the terms and conditions of probation. Thus, if disbursement of restitution is not stayed, an appellant must either violate his terms and conditions of probation by not paying restitution or pay restitution based upon an order that may be vacated. If an appellant chooses the former and, consequently, is found in violation of the terms of probation, the appellant may be incarcerated as a consequence. If an appellant chooses the latter, the funds will not be recovered. Such a result renders the right to appeal a restitution order meaningless.
Further, the amendment to the rules is being urged to establish a “statewide standard to ensure victims will receive consistent judicial ruling from case to case and across all case types in which restitution may be ordered.” However victims of cases heard in justice and municipal courts would not be afforded the same consideration. The justification for the disparity is the volume of limited jurisdiction court convictions reversed on appeal and the speed in which limited jurisdiction appeals are resolved. While the number of reversals of convictions and adjudications may be relatively small, the proponents of the rule change do not cite any statistics regarding the number of restitution awards that have been reduced or vacated. The number of restitution awards that are modified on appeal may rival the reversals of limited jurisdiction appeals. Also, the proposed rule change would affect juvenile court: according to Rule 103(C) Rules of Procedure for Juvenile Court, the appellate court shall give juvenile appeals precedence over all other actions except extraordinary writs and special actions. Thus juvenile appellate matters are resolved expeditiously. Hence the current provision properly balance victims’ and appellants’ interest while the proposed change would afford the appellants from limited jurisdiction courts protections denied appellants from superior court.
The proposed amendments to Rule 31.6 Rules of Criminal Procedure and Rule 103 Rules of Procedure for Juvenile Court disadvantage appellants. While the victim is entitled to prompt restitution, appellants are entitled to just resolutions. The current rules meet the needs of the victim and the appellant. Under the current rule, appellants pay restitution to the court which disburses the funds upon resolution of the appeal to the rightful owner, either the victim or the appellant.
Therefore, it is respectfully requested that this court not amend Rule 31 of the Rules of Criminal Procedure and Rule 103 of the Rules of Procedure for Juvenile Court.
Respectfully submitted this 13th day of May, 2009.
By: Chris Phillis
Maricopa County Juvenile Public Defender
777 W. Southern Ave.,
Mesa, Arizona 85207