Opinion
No. 1 CA-CR 12-0728
01-23-2014
STATE OF ARIZONA, Appellee, v. ANTHONY MATTHEW PENA, Appellant.
Arizona Attorney General, Phoenix By Adele Ponce Counsel for Appellee Maricopa County Public Defender, Phoenix By Jeffrey L. Force Counsel for Appellant DeFusco & Udelman, PLC By Randall S. Udelman Counsel for the Victim
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. CR2009-117226-001
The Honorable Robert E. Miles, Judge
AFFIRMED
COUNSEL
Arizona Attorney General, Phoenix
By Adele Ponce
Counsel for Appellee
Maricopa County Public Defender, Phoenix
By Jeffrey L. Force
Counsel for Appellant
DeFusco & Udelman, PLC
By Randall S. Udelman
Counsel for the Victim
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which Presiding Judge Andrew W. Gould and Judge Donn Kessler joined. BROWN, Judge:
¶1 Anthony Michael Pena appeals the trial court's order requiring him to pay $776,021.64 in restitution to one of the victims of Pena's crimes. Pena argues the court erred by including the victim's future medical costs and diminished earning capacity in the amount awarded. Finding no abuse of discretion, we affirm.
BACKGROUND
¶2 A jury found Pena guilty of first-degree murder, aggravated assault, and discharge of a firearm at a structure. The trial court imposed a natural life sentence for the murder conviction, to be served consecutively to concurrent prison terms for the remaining counts. Pena appealed from his convictions and sentences and this court affirmed in State v. Pena, 1 CA-CR 12-0575, 2013 WL 4399017 (Ariz. App. Aug. 13, 2013) (mem. decision).
The restitution order at issue here only pertains to the injuries suffered by the victim of Pena's aggravated assault. The aggravated assault involved a shooting that severed the victim's facial nerve, causing paralysis on the left side of his face; he had to have his left eye removed; he is now deaf in his left ear; and his carotid artery was "nicked" requiring twenty-five permanent metal coils to hold it together to prevent bleeding on his brain.
¶3 Based on a request filed by the victim, the court scheduled an evidentiary hearing for restitution. Prior to the hearing, the victim filed a memorandum outlining his restitution request, asserting the right to recovery for past and future costs of medical care and diminished earning capacity. Pena did not object to restitution for the medical expenses the victim had already incurred, but opposed the requested future medical costs and lost income as being "speculative" and not "causally . . . related to the crimes for which he has been convicted."
The victim's request was based on the opinions and analysis of Sims & White, PLLC, a rehabilitation and economic consulting firm which estimated the victim's future medical care costs and his diminished earning capacity in excess of $750,000.
¶4 The evidence from the restitution hearing reveals the following. At the time of the shooting, the victim was in his late twenties and worked at an architectural firm, as an "Intermediate Architect/Job Captain," earning $40,000 annually. He described the position as a person who partly manages the different projects within the company that "has several . . . employees underneath them doing the work." While doing this type of work, the victim was in the process of obtaining an architectural license.
¶5 The victim sustained serious permanent physical injuries and incurred $23,941.64 in out-of-pocket healthcare costs associated with treatment for those injuries. Although he returned to work several months after the shooting, the victim was let go from his employment at the architectural firm. Several months later, another architectural firm hired him in a similar position at an annual salary of $48,000. However, one year after he was hired, the victim again lost his employment. A couple years later the victim landed his current job at a different architectural firm as a "drafter," earning $19,000 annually and described by the victim as "the lowest position there is."
Of the $23,941.64 the victim sought in restitution for incurred medical expenses, the Arizona Victim Compensation Fund ("Fund") reimbursed him $20,000.
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¶6 The victim testified that as a result of his injuries, he felt he was at a disadvantage for future employment:
I've been told by doctors that the frontal lobe of my brain has been damaged due to the gunshot wound, and this affects the short term memory, and what they call . . . the task memory. I have issues with multitasking andThe victim also testified about the reasons he was let go from his two prior positions, and his lack of opportunity for advancement with his current employer, as follows:
[therefore] advancing in Architecture. And to get to that level of being a license[d] architect, you are in charge of more than just one project, and even at one project you have different disciplines within that one project. And I find it very difficult to do the job where I'm at now and doing multiple aspects of that project.
Q. Do you believe you lost your job . . . [because of] the injuries you sustained?Finally, during cross-examination, the following exchange occurred:
A. I believe that I was . . . chosen to be let go [by my first employer] due to my injuries.
Q. Do you believe you were let go from [your second employer] in part related to your limitations on your ability to multitask?
A. Yes, I do.
Q. And do you believe that you were limited in terms of your opportunities to obtain gainful employment, and ultimately you chose a drafter position because of limitations on your abilities due to this shooting?
A. Well, I chose the drafting position because that is the only one available, and they're the only one that would take me from unemployment.
. . .
When I was hired they didn't feel, and after working with them, there doesn't seem to be any chance of advancement at this Architecture firm.
. . .
I would say there was no room for advancement based on talking with the principals at the firm and with expressing plans to advance, and based on the feel that I get from all the
other employees, that there are no chances for advancement in my salary or in my position.
. . .
Q. Do you see your career path as on the same level as it existed before January of 2006, or a different level?
A. I wouldn't even be on the same plane.
Q. Probably an obvious question. Could you describe for us why you say that, []?
A. Based on my experience of looking for a job, interviewing, the discrimination that I have received, uh, this is an employment where there are no advancement opportunities. And the -- whether it be in my court, meaning I do have a disability, or they're just perceiving I have one. Either way, I'm at a disadvantage, and I don't feel that the opportunities are there anymore.
Q. [W]hy were you let go by that first company that you worked for [making $40,000 per year]?
A. [T]hey let a group of us go . . . I can't say for certain why I was let go.
Q. Okay. So they didn't come to you and say, . . . you can't do the job because of your injuries, so we're letting you go?
A. Not directly, no.
. . .
Q. Okay. So after that job, you then were out of a job for about three months, and then you found pretty much a similar job at the second architecture company, right?
A. Correct.
. . .
Q. And why were you let go from there?
A. Once again, it was the same situation. They -- they said that they didn't have any work for me to do. . . . I think they used the economy as an excuse.
¶7 Economist James Sims testified regarding the victim's loss of earning capacity. Based on interviews with the victim and statistical analysis, Sims estimated the victim's future loss of earnings to be $568,000 based on the victim's expected remaining statistical work life of 28.4 years multiplied by $20,000 as the average reasonable difference between the victim's prior income and his current salary.
¶8 Lora White, an independent life care planner, opined to a reasonable degree of "life care" probability that the victim will require continuing medical treatment for his injuries through the remainder of his statistical life expectancy of forty-two more years. Based on her experience and discussions with the victim's various healthcare providers, she arrived at the cost of $186,149. White's testimony was supported by an opinion letter and spreadsheet listing the estimated annual costs for each medical service and treatment. White also testified that the number calculated in her spreadsheet "would go up" by $17,931 based on the victim's testimony of medical visits to an additional doctor she had not included in her evaluation.
¶9 The court issued a restitution order in the amount of $796,021.64, ordering Pena to pay $776,021.64 to the victim, and $20,000 to the Arizona Victims' Compensation Fund. The court found that the victim has suffered diminished earning capacity in the amount of $568,000 and will incur future medical expenses in the amount of $204,080. Also included were the past medical expenses, less the amount reimbursed by the Fund, of $3,941.64. The court stated further that it would "continue to retain jurisdiction over the issue of restitution in the event any modification of this order becomes necessary[.]" Pena timely appealed and we have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") sections 12-120.21 and 13-4033(A)(3).
DISCUSSION
¶10 Pena argues the court erred in ordering restitution for lost future income because the victim's diminished earning capacity "is not causally related to the crime," and the order was improperly based on "mere speculation that [the victim] was laid off for his injuries[.]" Pena also asserts that the amount of the victim's future medical costs is too speculative to support a restitution award.
¶11 A trial court must order a person convicted of a crime to make restitution to the victim "in the full amount of the economic loss as determined by the court[.]" A.R.S. § 13-603(C). In ordering restitution for economic loss pursuant to § 13-603 . . . 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). "Economic loss" is defined by statute to mean
any loss incurred by a person as a result of the commission of an offense. Economic loss includes lost interest, lost earnings, and other losses which would not have been incurred but for the offense. Economic loss does not include losses incurred by the convicted person, damages for pain and suffering, punitive damages or consequential damages.A.R.S. § 13-105(16) (emphasis added). Therefore, "[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. Madrid, 207 Ariz. 296, 298, ¶ 5, 85 P.3d 1054, 1056 (App. 2004) citing State v. Wilkinson, 202 Ariz. 27, 29, ¶ 7, 39 P.3d 1131, 1133 (2002).
¶12 "The trial court has discretion to set the restitution amount according to the facts of the case in order to make the victim whole." State v. Wilson, 185 Ariz. 254, 260, 914 P.2d 1346, 1352 (App. 1995); see also State v. Zaputil, 220 Ariz. 425, 428, ¶ 11, 207 P.3d 678, 681 (App. 2008) ("Restitution is not a punishment exacted by the state[; i]nstead, its purpose is to make the victim whole.") (internal citations omitted). We will uphold the trial court's restitution award if the record substantially supports the court's conclusion the award is reasonably related to the victim's loss. See State v. Howard, 168 Ariz. 458, 460, 815 P.2d 5, 7 (App. 1991). "The burden of proof applicable to restitution is proof by a preponderance of the evidence." In re Stephanie B., 204 Ariz. 466, 470, ¶ 15, 65 P.3d 114, 118 (App. 2003).
A. Diminished Earning Capacity
¶13 As noted, "economic loss" is defined as "any loss incurred by a person as a result of the commission of an offense" and "includes lost interest, lost earnings, and other losses which would not have been incurred but for the offense." A.R.S. § 13-105(16). Given this broad statutory directive, "we have allowed restitution for a wide variety of expenses caused by the conduct of persons convicted of crimes," including lost earnings, which the legislature has specifically "identified [] as among the losses for which the court may order restitution." State v. Lindsley, 191 Ariz. 195, 198, 953 P.2d 1248, 1251 (App. 1997). Thus, lost earnings are not considered "consequential damages." See Howard, 168 Ariz. at 460, 815 P.2d at 7 ("[T]he full amount of a victim's economic loss includes not only those losses incurred at the time of sentencing, but also those losses reasonably anticipated to be incurred in the future as a result of the defendant's actions.") .
¶14 When proving an economic loss for restitution purposes it "is a matter for proof and not speculation." State v. Iniguez, 169 Ariz. 533, 538, 821 P.2d 194, 199 (App. 1991); see also State v. West, 173 Ariz. 602, 609, 845 P.2d 1097, 1104 (App. 1992) ("No restitution can be imposed beyond that established by the conviction and factually supported by the record[.]"). A court may only "award restitution for those damages that flow directly from the defendant's criminal conduct, without the intervention of additional causative factors." Wilkinson, 202 Ariz. at 29, ¶ 7, 39 P.3d at 1133. Thus, we must determine whether a preponderance of evidence supports a determination that the victim's shooting injuries were the direct cause of his loss of employment positions he had prior to the shooting and that such injuries will prevent him from returning to equivalent positions. See Howard, 168 Ariz. at 460, 815 P.2d at 7 (finding sufficient evidence existed to support restitution award for lost future wages); see also Stephanie B., 204 Ariz. at 470, ¶¶ 15-17, 65 P.3d at 118 (affirming an award of restitution for victim's fractured teeth despite defendant not being found guilty of fracturing any body part because the defendant had directly caused the victim's injuries by committing a separate offense—assault while the victim was substantially impaired).
¶15 Here, the victim testified that due to the injuries sustained in the frontal lobe of his brain he has difficulty with maintaining short-term memory and multitasking, affecting his ability to advance in his chosen field of architecture. He also testified he believed he was let go from the second architectural firm because of the limitations of his ability to multitask and these limitations put him at a "disadvantage" to perform on the same level as his co-workers.
¶16 Sims testified that based on his research in the architectural employment market, the victim's representations about his earnings were consistent with the average in the Phoenix area. Sims also testified that based on the injuries the victim sustained, the loss of depth perception would likely relegate the victim to a drafting occupation and he would probably not be able to obtain an architectural license. He determined that the victim's loss was approximately $20,000 per year and, based on the victim's life expectancy, his loss would total $568,000. Given the opinion offered by Sims, together with the victim's testimony regarding the limitations he encountered after his injuries, the trial court's award of restitution for lost earnings is substantially supported by the record.
¶17 Pena argues the victim was "clearly capable of functioning in the capacity of a job captain" because the victim testified that after being initially treated for his injuries he returned to the position he held before the shooting. We disagree.
¶18 The record reflects that although the victim lost his initial position in January 2008, another firm hired him several months later for a similar position, and he earned an additional $8,000 in annual salary. However, the victim only worked for a year before he lost that job. Thus, while Pena is correct that the victim was able to obtain a higher paying job after his injuries, he was not able to maintain that position for more than a year. Pena's reliance on the victim's ability to obtain a higher paying job is therefore misplaced because the relevant considerations are the victim's employment situation and likely job prospects at the time of the restitution hearing. The victim testified he held a lower ranking "drafting" position, and stated quite plainly that he would not be able to perform the duties of his prior position as a result of his injuries.
¶19 Considering the facts in the light most favorable to the trial court's restitution order, State v. Lewis, 222 Ariz. 321, 323, ¶ 2, 214 P.3d 409, 411 (App. 2009), a preponderance of the evidence supports the trial court's implicit finding that "but for" Pena's aggravated assault, the victim would have maintained for his "statistical work life" the salary he was earning at the time he was injured. See Wilkinson, 202 Ariz. at 29, ¶ 7, 39 P.3d at 1133. The trial court thus acted within its discretion in determining Pena's obligation to pay restitution for diminished earning capacity.
B. Future Medical Expenses
¶20 Pena also argues that the award of future medical expenses was inappropriate. However, "reasonably anticipated" future medical expenses are, by law, recoverable as restitution. Howard, 168 Ariz. at 460, 815 P.2d at 7 (restitution includes future medical care and lost earning capacity claims). While a restitution award must be reasonably related to the victim's loss, "it cannot always be confined to easily measurable damages." Id. at 460, 815 P.2d at 7 (quotation and citation omitted).
¶21 White's testimony, together with the spreadsheet outlining anticipated future medical expenses, was not contradicted. She based her opinion on information from the victim's treating physicians and their respective billing offices regarding future treatment requirements and costs. Pena has not established that the amount awarded for those expenses was "not grounded on some rational basis." See Id. Therefore, the trial court did not err in ordering the payment of restitution for the victim's future medical costs.
CONCLUSION
¶22 Based on the foregoing, we affirm the trial court's restitution award.