Opinion
Nos. 48707-8-I 46733-6-I (Linked cases)
Filed: October 4, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 95-1-05290-4. Judgment or order under review. Date filed: 10/18/1996. Judge signing: Hon. James A. Noe.
Counsel for Appellant(s), Suzanne Lee Elliott, Attorney at Law, Ste 1300 Hoge Bldg, 705 2nd Ave, Seattle, WA 98104-1741.
Anthony Muma (Appearing Pro Se), P.O. Box 953, Snohomish, WA 98291.
Counsel for Respondent(s), John Bramwell Castleton Jr, King Co Courthouse, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Dennis John McCurdy, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
In these linked appeals, Anthony Muma challenges his 1995 guilty pleas and a subsequent order of restitution. He contends a reconstructed record of the plea hearing is constitutionally inadequate, there is no factual basis for the pleas, and his plea counsel was ineffective. He also contends, and the State concedes, that the restitution order is invalid.
Because Muma's challenges to his pleas and the record of the plea hearing lack merit, we affirm his convictions. But because the State concedes that the restitution order is invalid and because the record is insufficient to review the restitution award in any event, we vacate the restitution order and remand for further proceedings consistent with this opinion.
FACTS
Anthony Muma is a former police officer with a history of domestic violence. In 1995, following allegations that he entered his estranged wife's apartment without permission and assaulted her on separate occasions, the State charged him with second and fourth degree assault, residential burglary, unlawful imprisonment, domestic violence violation of a court order, and tampering with a witness. During jury selection, Muma decided that he did not want his children testifying in front of a jury and waived his right to a jury.
When the case came on for trial, Muma told his attorney and the court that he wanted to plead guilty `to spare [his children] from testifying[.]' He then entered straight guilty pleas on the fourth degree assault and domestic violence charges, and Alford pleas on the residential burglary and witness tampering charges. In exchange, the State dismissed the second degree assault and unlawful imprisonment charges.
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L.Ed. 2d 162 (1970).
On January 12, 1996, the court entered judgments and sentences and later ordered restitution. Muma did not appeal.
In December 1996, Muma filed a personal restraint petition challenging his convictions on several grounds, including sufficiency of the evidence and the voluntariness of his pleas. This court dismissed the petition, ruling that most of the issues were waived by his guilty pleas and that his voluntariness argument was too conclusory to warrant relief.
In re Muma, No. 39821-1-I (1997).
In January 1997, Muma moved to withdraw his pleas. Fifteen months later, he filed a supporting memorandum. In January 1999, the superior court ruled that the motion was untimely and, alternatively, that Muma's factual basis and ineffective assistance claims lacked merit. This court affirmed on the ground that the motion was time-barred.
State v. Muma, No. 43987-1, noted at 105 Wn. App. 1056, review denied, 145 Wn.2d 1011 (2001).
In February 2000, Muma moved under CrR 7.8 for relief from the restitution order. The superior court denied the motion. Muma appealed. In October 2001, this court affirmed on the ground that the motion was untimely. Muma petitioned for review.
State v. Muma, No. 46733-6-I, noted at 108 Wn. App. 1035, review granted, cause remanded by, 146 Wn.2d 1016 (2002).
In June 2001, while his petition for review was pending, Muma filed an untimely notice of appeal from the 1995 convictions and order of restitution. State v. Muma, No. 48707-8-I. He moved for an extension of time to file the notice of appeal, arguing that he had never been advised of his right to appeal the convictions. This court denied the motion. Muma again petitioned for review.
In April 2002, the Supreme Court granted Muma's petition for review in his untimely direct appeal and remanded with directions to grant an extension of time. Several months later, the Court granted Muma's petition for review in his appeal from the denial of his CrR 7.8 motion. The Court remanded that appeal as well and directed this court to consider it `in conjunction with [Muma's] pending appeal. . . .' The remand orders effectively granted Muma a direct appeal of both the 1995 convictions and the subsequent restitution order.
On remand, this court linked Muma's appeals. When it became clear that no transcript or reporter's notes existed for the 1995 plea hearing, this court remanded appeal number 48707-8-I to determine whether a record of the proceeding could be reconstructed. Neither the judge nor the attorneys present at the 1995 plea hearing had independent recollections of the hearing. Over objections, the prosecutor testified in great detail regarding the procedure he routinely followed during plea colloquies. Muma testified that he recalled the plea hearing and remembered being `extremely upset and crying uncontrollably, sobbing, with tears just running off my face.' He recalled telling the court that he was pleading guilty to spare his children from testifying against him. He said that he felt his children `were being held hostages, being used against me to get me to enter the plea.' Although he conceded that he chose to plead guilty, he claimed he did so under `extreme duress' and only to protect his children. He stated that during the colloquy, he `wasn't agreeing to anything. I was just sobbing and shaking my head, yes.' When asked whether the prosecutor had covered the matters he claimed he routinely covered during a colloquy, Muma said `[h]e went over everything, but I interjected several times, stating it was for my children.'
The superior court concluded that the prosecutor's testimony regarding his standard practices, together with Muma's testimony, created a sufficient record for review.
DECISION I.
A criminal defendant is constitutionally entitled to a `record of sufficient completeness' to permit effective appellate review of his or her claims. When, as here, a verbatim report of proceedings cannot be produced, an alternative record of the proceeding is constitutionally sufficient if it permits effective review. An alternative record must allow counsel to determine which issues to raise on appeal, provide sufficient information to develop issues that are raised on appeal, and "place before the appellate court an equivalent report of the events at trial from which the appellant's contentions arise." Muma contends the reconstructed record of his plea hearing is constitutionally inadequate. We disagree.
State v. Tilton, 149 Wn.2d 775, 72 P.3d 735 (2003).
Tilton, 149 Wn.2d at 781; cf. RAP 9.1(b) (report of proceedings may take form of verbatim report, narrative report, or agreed report).
Tilton, 149 Wn.2d at 781; State v. Larson, 62 Wn.2d 64, 67, 381 P.2d 120 (1963).
See Tilton, 149 Wn.2d at 783.
State v. Jackson, 87 Wn.2d 562, 565, 554 P.2d 1347 (1976) (quoting Draper v. Washington, 372 U.S. 487, 495, 83 S. Ct. 774, 9 L. Ed. 2d 899, cert. denied, 374 U.S. 850, 374 U.S. 852 (1963)).
Muma's counsel recites the rule that a reconstructed record must be sufficient to allow counsel to identify issues on appeal. But counsel does not argue that the record in this case is insufficient for that purpose. Instead, she identifies a specific issue, i.e., whether the pleas were voluntary given Muma's recollection that he equivocated during the colloquy, and argues only that the record is insufficient to brief that issue. She asserts that the prosecutor's recollection of his usual colloquy procedure does not reconstruct the actual events of the plea hearing and is therefore insufficient.
If the prosecutor's testimony were the only evidence of what occurred at the plea hearing, counsel would be correct. But Muma testified that he recalled the plea hearing and that the prosecutor had in fact followed his usual routine. Muma also described his alleged equivocation, claiming that he repeatedly told the court during the plea hearing that he was pleading guilty only to protect his children. In addition to this testimony, Muma's signed statement on plea of guilty also provides evidence relating to his knowledge, the voluntariness of his plea, and the matters the prosecutor covered in the colloquy. This evidence provides a sufficient record to review the issue identified in counsel's brief.
II.
The State contends Muma's challenges to his pleas are barred by principles of res judicata and collateral estoppel. Because Muma raised these claims in his earlier personal restraint petition and motion to withdraw, the State contends he is precluded from raising them in this direct appeal. We disagree.
Collateral estoppel and res judicata apply only when an issue was previously decided in a final judgment on the merits. Muma's personal restraint petition was not decided on the merits. While the superior court did decide his motion to withdraw on the merits and rejected his factual basis and ineffective assistance claims, Muma appealed those rulings and this court ultimately decided the case solely on procedural grounds. Accordingly, because the final decision in that proceeding was not on the merits, Muma's current claims are not barred by either collateral estoppel or res judicata.
State v. Williams, 132 Wn.2d 248, 254, 937 P.2d 1052 (1997); State v. Sherwood, 71 Wn. App. 481, 488, 860 P.2d 407 (1993), review denied, 123 Wn.2d 1022, 875 P.2d 635 (1994).
III.
Muma contends he should be allowed to withdraw his guilty pleas because they are not supported by adequate factual bases. To withdraw his pleas, Muma must demonstrate a manifest injustice, i.e., an injustice that is "obvious, directly observable, overt, not obscure." Examples of a manifest injustice include denial of effective assistance of counsel and an involuntary plea. An inadequate factual basis may affect the voluntariness of a plea, but it is not necessarily fatal to a plea's validity. `[T]he establishment of a factual basis is not an independent constitutional requirement, and is constitutionally significant only insofar as it relates to the defendant's understanding of his or her plea.' Thus, to demonstrate a manifest injustice, Muma must demonstrate more than a deficiency in the factual bases for his pleas; he must demonstrate that the deficiency affected his understanding of the plea. He has not carried that burden.
State v. Osborne, 102 Wn.2d 87, 97, 684 P.2d 683 (1984) (quoting State v. Taylor, 83 Wn.2d 594, 596, 521 P.2d 699 (1974)).
State v. Saas, 118 Wn.2d 37, 42, 820 P.2d 505 (1991).
See In re Hews, 108 Wn.2d 579, 741 P.2d 983 (1987).
In re Barr, 102 Wn.2d 265, 269, 684 P.2d 712 (1984).
In re Hews, 108 Wn.2d at 591-92.
See State v. Branch, 129 Wn.2d 635, 641-42, 919 P.2d 1228 (1996).
Although Muma baldly asserts that deficiencies in the factual bases affected the voluntariness of his plea, he does not demonstrate why that is so. In any case, the charges were supported by adequate factual bases. Residential Burglary. An adequate factual basis exists when there is sufficient evidence in the record for a jury to conclude that the defendant is guilty; proof beyond a reasonable doubt is not required. To convict Muma of residential burglary, the State had to prove that he entered or remained unlawfully in a dwelling with intent to commit a crime inside. RCW 9A.52.025(1). Muma contends there was no factual basis for a finding that he intended to commit a crime in the apartment. We disagree. The certifications of probable cause state that the Mumas had been legally separated for three years when, without permission, he entered his wife's apartment with a phone, hid in a closet, and plugged the phone into a phone jack. Muma then listened, without permission, to a phone conversation between his wife and her friend. When Muma started speaking on the phone, his wife fled the apartment because Muma had `beaten her many times in the past.' Muma chased her outside, grabbed her by the wrist, and threw her to the ground. On these facts, a jury could infer intent to commit an assault or a theft of services or utilities.
If anything, the record suggests that Muma pled guilty with full knowledge of the weaknesses in the State's case. During pretrial proceedings, Muma's counsel, in open court and in Muma's presence, assessed the relative strength of the State's case on the various counts. Counsel told the court, `the State's case is weak on numerous of the counts charged,' including the burglary and the witness tampering charges.
Saas, 118 Wn.2d at 43.
The State did not have to prove intent to commit a particular crime, RCW 9A.52.040, and Muma's intent could be inferred from all the facts and circumstances surrounding his conduct, State v. Brooks, 107 Wn. App. 925, 929, 29 P.2d 45 (2001) (citing State v. Lewis, 69 Wn.2d 120, 123, 417 P.2d 618 (1966)), or from conduct plainly indicating such intent as a matter of logical probability. State v. Bergeron, 105 Wn.2d 1, 20, 711 P.2d 1000 (1985) (quoting State v. Bergeron, 38 Wn. App. 416, 419, 685 P.2d 648 (1984), aff'd, 105 Wn.2d 1, 711 P.2d 1000 (1985)).
In her taped statement to police, Muma's wife also stated that Muma was `[p]ossessive and violent,' and that the evening before the burglary she spent the night at a friend's house. When she returned to her apartment, she found a note from Muma outside the door asking where she had been. Once inside, she phoned a friend. Muma then said something over the phone about his `faithful wife.'
See State v. Brunson, 76 Wn. App. 24, 31, 877 P.2d 1289 (1994) (unpermitted use of telephone constitutes theft of services and supports burglary charge), aff'd, 128 Wn.2d 98, 905 P.2d 346 (1995).
Muma argues that there was no factual basis for the burglary plea because the evidence supported an innocent motivation for his entry, i.e., to `eavesdrop on his wife.' He contends an inference of intent to commit a crime may not be drawn where an innocent explanation is equally plausible. While that is true, it is `the province of the finder of fact to determine what conclusions reasonably follow from the particular evidence in a case.' In this case, there was sufficient evidence for a jury to infer that Muma entered with intent to commit criminal acts, innocent acts, or both. Muma argues pro se that the evidence before the plea court did not show unlawful entry. He notes that a police report stated that `[Muma] has permission to be in/at the apartment.' He concedes that the report was not before the superior court at the time of the plea. Citing State v. Zumwalt, however, he argues that this court can consider the report because the prosecutor had it at the time of the plea and therefore knew or should have known that the certifications of probable cause were false. Even assuming Muma reads Zumwalt correctly, his argument fails for two reasons.
State v. Bencivenga, 137 Wn.2d 703, 711, 974 P.2d 832 (1999).
State v. Bencivenga, 137 Wn.2d at 711.
79 Wn. App. 124, 901 P.2d 319 (1995).
First, contrary to Muma's assertions, it is not clear from the report whether Muma or his wife told the officer he had permission to be in the apartment. Second, the police report does not render contrary statements in the certifications false so long as there was also evidence supporting an inference that Muma did not have permission to be in the apartment. In statements to police, Muma's wife said he was not on her lease, that he had `broken into' her apartment, and that he told her he had used a ladder to climb in her kitchen window. This evidence supports the statements in the certifications.
Witness Tampering. Next, Muma contends there was no factual basis for a witness tampering charge. Witness tampering occurs when a person `attempts to induce a witness or person he or she has reason to believe is about to be called as a witness in any official proceeding or a person whom he or she has reason to believe may have information relevant to a criminal investigation . . . to: (a) Testify falsely or, without right or privilege to do so, to withhold any testimony; or . . . (c) Withhold from a law enforcement agency information which he or she has relevant to a criminal investigation. . . .' RCW 9A.72.120(1). The focus in a witness tampering case is not on the literal meaning of the defendant's words, but on their inferential meaning and the context in which they were used.
See State v. Rempel, 114 Wn.2d 77, 83-84, 785 P.2d 1134 (1990); State v. Sanders, 66 Wn. App. 878, 889-90, 833 P.2d 452 (1992), review denied, 120 Wn.2d 1027 (1993).
The certifications establish that after being charged with offenses in which his wife was a witness, Muma repeatedly attempted to contact her from jail despite the existence of a no contact order. When a phone block was put in place, Muma tried to contact her through third parties and letters. A message left on his wife's phone said in part that `Tony [Muma] said all you'd have to do is stand there and say that . . . you don't want to sign any paperwork and . . . that's it. . . . Not that, uh, or that he can see the kids. And that's it. That's all you need to do.' Muma also mailed letters to his wife's post office box. The letters were addressed to her mother who lives in England and has never received mail at that address. The letters stated in part:
If she doesn't testify and she tells my attorney Bruce Brown, 322-8400 ext. 120, she might have to tell the judge on 8-29-95 that she does not want to press charges and she does not want a no contact order like she claims to have been telling the detective and advocate. I will be able to get out without any charges . . . Asking [her] to stand up for me to go tell the judge would be a sign that she cares and maybe all that I suspect is wrong.
A reasonable inference from this evidence is that Muma was attempting to convince his wife to withhold testimony and falsely tell the court she did not want a no-contact order. The evidence is sufficient for a jury to find the elements of witness tampering.
Muma's reliance on State v. Ahern is misplaced. The Ahern court stated that advising a witness to assert their Fifth Amendment privilege does not amount to witness tampering. This is self-evident from RCW 9A.72.120, which prohibits inducing a witness to withhold testimony `without right or privilege to do so.' Here, Muma's wife had no right to not testify if subpoenaed.
64 Wn. App. 731, 826 P.2d 1086 (1992).
This case is also distinguishable from State v. Rempel and State v. Jensen, both cited by Muma. The defendants in those cases merely requested that the witness `drop the charges.' The factual context of the requests negated any inference that the requests were inducements to withhold testimony at a later trial. Here, the factual context provided by the certifications supports an inference of witness tampering.
114 Wn.2d 77, 83-84, 785 P.2d 1134 (1990).
57 Wn. App. 501, 509-10, 789 P.2d 772 (1990), aff'd by State v. Howe, 116 Wn.2d 466, 805 P.2d 806 (1991).
Assault/Violation of No Contact Order. Muma argues pro se that there was no factual basis for his guilty pleas to fourth degree assault and violation of a no contact order. The record supplies ample factual bases for both charges. Muma admitted in his statement on plea of guilty that on June 12, 1995, he `intentionally assaulted' his wife. The certifications of probable cause state that on June 12, 1995, Muma threw his wife to the ground, repeatedly punched her, and dragged her by her hair. As for the charge of violating a no contact order, the amended information recites that Muma was prohibited from contacting his wife `directly or indirectly.' The certifications contain facts showing both direct and indirect contact. Muma admitted in his plea that he `knowingly violated' the terms of a no contact order by attempting to contact his wife indirectly: `I knew the order prohibited me from having contact with [her] but I had an acquaintance call her anyway.'
IV.
Muma argues that his plea was equivocal and involuntary because he `advised the court . . . that he was not entering the guilty plea because he was guilty, rather . . . he was doing it to spare his children the trauma of having to testify against their father in open court.' But Muma's signed pleas support a presumption that his pleas were voluntary. His admission that the information in the guilty pleas was canvassed again in open court makes that presumption `well nigh irrefutable.' Muma's claim that he pleaded guilty to spare his children from testifying does not rebut the presumption. Nor does it render his plea equivocal. An Alford plea is equivocal only when the defendant's understanding of the plea is called into question. There is no such showing here.
State v. Perez, 33 Wn. App. 258, 261-62, 654 P.2d 708 (1982) (citing In re Keene, 95 Wn.2d 203, 206-07, 622 P.2d 360 (1980)).
See State v. Williams, 117 Wn. App. 390, 401-02, 71 P.3d 686 (2003) (desire to help a loved one does not, standing alone, render a guilty plea invalid), review denied, 151 Wn.2d 1011 (2004).
State v. Hubbard, 106 Wn. App. 149, 155-56, 22 P.3d 296, review denied, 145 Wn.2d 1004 (2001).
V.
Muma also argues pro se that a manifest injustice occurred because he received ineffective assistance of counsel during the plea proceedings. A defendant claiming ineffective assistance must show deficient performance and a reasonable probability that, but for counsel's omissions, the result of the proceedings would have been different. In the context of a guilty plea, the defendant must show that counsel failed to assist him in deciding whether to plead guilty and that but for counsel's failure, he would not have pleaded guilty. There is a strong presumption that counsel was effective and made all significant decisions in the exercise of reasonable professional judgment. Because the presumption favors effective representation, the defendant must show that no legitimate tactical reason supports the challenged conduct. Muma has not overcome the presumption. In general, his claims are undermined by the fact that he pled guilty for personal reasons, not because of concerns relating to his defense. While he now claims that he pled guilty, in part, because his counsel was ill-prepared for trial, that claim is belied by his testimony at the hearing to reconstruct the record. There, he testified that he told the trial court he was pleading guilty to spare his children from testifying. He repeatedly testified that this was his motivation and never once suggested that his counsel's readiness for trial was a factor in his decision. The record thus does not support Muma's current claim that, but for counsel's omissions, he would not have pled guilty.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
State v. McCollum, 88 Wn. App. 977, 982, 947 P.2d 1235 (1997), review denied, 137 Wn.2d 1035 (1999); State v. Garcia, 57 Wn. App. 927, 791 P.2d 244, 115 Wn.2d 1010 (1990).
State v. Brett, 126 Wn.2d 136, 198, 892 P.2d 29 (1995), cert. denied, 516 U.S. 1121 (1996).
State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995).
In any case, Muma fails to demonstrate that his counsel was ineffective. He contends counsel failed to interview three witnesses: Lon Skubovius, Heidi Taft, and Muma's mother. The record indicates that defense counsel tried unsuccessfully to locate Skubovius. Eventually, the prosecutor located him and provided his statement to defense counsel in discovery. Muma does not explain why counsel needed to interview Skubovius when he already had his statement.
Muma alleges that Heidi Taft, the leasing agent at his wife's apartment complex, `could have testified that [Muma] had permission to be at the apartment and she had even . . . supplied [Muma] with a key to the apartment.' He cites no evidence supporting this bare allegation. Muma also argues that counsel should have interviewed his mother, Mary Muma. Muma admits, however, that his counsel had subpoenaed Mary for trial. Thus, counsel may have intended to interview Mary prior to her testimony. And even assuming counsel's performance was deficient, there is no reasonable probability Muma's plea would have been different but for counsel's omission. Mary's affidavit contains no significant evidence, and her testimony would have been discounted by a trier of fact in any event given her relationship to Muma.
Muma criticizes trial counsel's investigation of Jackie Chaney's account of the assault on June 12, 1995. He alleges he told counsel that Chaney could not have seen the assault from where she was standing in her apartment. He concedes that defense counsel had an investigator photograph the view from Chaney's apartment. He argues, however, that when he saw the photographs on the morning of trial, he discovered that they had been taken from the wrong side of the building. He claims he pointed the mistake out to counsel, but counsel `merely waived it off.' Even assuming this establishes deficient performance, Muma overlooks the fact that Chaney called 911 and reported the events as she witnessed them. Given that corroboration, there is no reasonable probability Muma's pleas would have been different but for counsel's alleged omission.
Muma also claims defense counsel failed to obtain evidence demonstrating that he was not legally separated at the time of the alleged burglary. But whether the Mumas were legally separated is immaterial. It is undisputed that they were living apart and that Muma was not on his wife's lease. There was also evidence that Muma did not have permission to be in the apartment on the date of the offense. This evidence was sufficient to prove the unlawful entry element of the residential burglary charge. Finally, Muma argues pro se that his counsel was ineffective for failing to move to dismiss when the prosecutor's addition of charges on the eve of trial necessitated a continuance. Citing State v. Michielli, 132 Wn.2d 229, 245, 937 P.2d 587 (1997), he argues that the delay in amending the charges warranted dismissal under CrR 8.3(b). This argument fails because Muma's guilty plea waived any speedy trial challenges and all ineffective assistance claims except those bearing on whether his plea was voluntary, knowing, and intelligent.
State v. Phelps, 113 Wn. App. 347, 57 P.3d 624 (2002).
See In re Peters, 50 Wn. App. 702, 705, 750 P.2d 643 (1988).
Furthermore, counsel was not ineffective for failing to move to dismiss. In Michielli, the court found dismissal proper when the prosecutor unexpectedly added four new charges just three business days before trial. No notice had been given to the defendant that the State was considering the additional charges. By contrast, the State in this case gave ample notice of its intent to amend the charges. Absent a showing of arbitrary action or misconduct, a trial court cannot dismiss charges under CrR 8.3(b). Michielli, 132 Wn.2d at 240. Under the facts of this case, dismissal would not have been appropriate, and counsel's failure to bring such a motion was not deficient performance.
VI.
In his linked appeal (No. 46733-6-I), Muma raises several challenges to the order of restitution. He contends there is no causal connection between his crimes and the restitution ordered, the order was entered without adequate notice, and the record does not support the restitution amount. He further contends, and the State concedes, that the restitution order is invalid because it was signed by a defense attorney who had previously withdrawn. In light of the State's concession and because the record is insufficient to review the restitution order in any event, we vacate the restitution order and remand for further proceedings consistent with this opinion.
Because the Supreme Court's remand converted Muma's CrR 7.8 motion into a direct appeal, he is entitled to a record sufficient for effective review of the restitution award. State v. Thomas, 70 Wn. App. 296, 298, 852 P.2d 1130 (1993). The record, however, consists of little more than the restitution order itself. There are no documents or findings supporting the restitution amount. It also appears that there are no transcribable records of any restitution proceedings that may have been held. The record indicates that Muma attempted at several points to obtain any documents supporting the restitution order, but was rebuffed by the prosecutor and the court. Under the circumstances, we conclude that the record is constitutionally inadequate for review.
The convictions are affirmed. The order of restitution is vacated and remanded for proceedings consistent with this opinion.
COX, BECKER and AGID, JJ., concur.