Opinion
No. 2 CA-CR 2018-0056-PR
08-13-2018
THE STATE OF ARIZONA, Respondent, v. CHAD IAN PIEKOSZ, Petitioner.
COUNSEL James Fullin, Pima County Legal Defender By Alex D. Heveri, Assistant Legal Defender, Tucson Counsel for Petitioner
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Petition for Review from the Superior Court in Pima County
No. CR20171953001
The Honorable James E. Marner, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL James Fullin, Pima County Legal Defender
By Alex D. Heveri, Assistant Legal Defender, Tucson
Counsel for Petitioner
MEMORANDUM DECISION
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Chief Judge Eckerstrom concurred. BREARCLIFFE, Judge:
¶1 Chad Piekosz seeks review of the trial court's order denying his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that order unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Piekosz has not shown such abuse here.
¶2 Piekosz and a codefendant were charged by indictment with fraudulent scheme and artifice, theft, three counts of computer tampering, and three counts of theft of a credit card. Piekosz ultimately pled guilty to theft and attempted theft of a credit card. The plea agreement stated that he "agree[d] to pay restitution to all of the victims named in the original indictment, even if they are not named within the specific charge to which the defendant is pleading guilty." Additionally, the agreement provided that Piekosz "waive[d] any and all rights to have the amount of the restitution [he] owes determined by an evidentiary (restitution) hearing." It further provided that the "victims' restitution claim form shall be accepted as conclusive proof of the victims' economic loss" and could include "losses suffered as a result of the course of conduct of which the defendant may only be a part."
¶3 According to the presentence report, the requested restitution represented "$5,000 for money stolen by the defendants and $515 to replace a stolen mailbox," and the victim's "bank [had] reimbursed his account for the other missing funds." The victim's restitution request stated he sought restitution for "5,000 [that] was missing when I came home from [the] hospital" and a mailbox which "was stolen while I was in [the] hos[pital]." He requested restitution of "$515.00" and attached a product page from a website showing a mailbox retailing for $115.00. The trial court suspended the imposition of sentence for both offenses and placed Piekosz on concurrent, three-year probation terms. It also ordered that Piekosz pay $5,515 in restitution, over Piekosz's objection that those amounts were not for "charges in the indictment."
¶4 Piekosz sought post-conviction relief, repeating his argument that the restitution award was improper because the identified losses "are not the result of [his] criminal conduct charged or pled to." The state responded that Piekosz had been charged with the theft of "money" and had agreed, as part of his plea, to accept the "restitution affidavit as conclusive proof of economic loss" without a hearing and that he would make restitution "for a course of conduct of which he may only be a part." The trial court denied relief, noting that Piekosz had received the victim's restitution affidavit before pleading guilty and that the plea agreement was "unambiguous" that the affidavit would be accepted as "conclusive proof of the victim's economic loss."
The state also argued Piekosz should not be permitted to withdraw from the plea. Although he cited Rule 17.5, Ariz. R. Crim. P., in his petition for post-conviction relief, he did not ask for permission to withdraw from the plea, instead asking that the court vacate the restitution award. --------
¶5 On review, Peikosz reiterates his argument that the restitution award was improper. 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). "A trial court, however, 'may impose restitution only 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. Lewis, 222 Ariz. 321, ¶ 7 (App. 2009), quoting State v. Garcia, 176 Ariz. 231, 236 (App 1993). A loss is recoverable as restitution only if it is economic, would not have been incurred but for the criminal conduct, and was caused by the criminal conduct. Id. "Economic loss" is "any loss incurred by a person as a result of the commission of an offense." A.R.S. § 13-105(16). A defendant has a due process right to contest restitution, although that right can be waived. State v. Steffy, 173 Ariz. 90, 93 (App. 1992) (finding waiver when defendant failed to object to amount of restitution or request restitution hearing and specifically waived mitigation hearing). At any restitution hearing, the state has the burden of proving a restitution claim by a preponderance of the evidence. In re Stephanie B., 204 Ariz. 466, ¶ 15 (App. 2003).
¶6 A plea agreement is governed, at least in part, by contract law principles. See Coy v. Fields, 200 Ariz. 442, ¶ 9 (App. 2001). Thus, we must strive to give meaning to all its terms without rendering any superfluous. See Duenas v. Life Care Ctrs. of Am., Inc., 236 Ariz. 130, ¶ 35 (App. 2014). And, "[w]hen the terms of an agreement are clear and unambiguous, we give effect to the agreement as written." Town of Marana v. Pima Cty., 230 Ariz. 142, ¶ 21 (App. 2012). We review the trial court's interpretation of the plea agreement de novo. See id. ¶ 20.
¶7 The pertinent clauses in the plea agreement are Piekosz's agreement to accept the "victims' restitution claim form . . . as conclusive proof of the victims' economic loss," and his waiver of "any and all rights to have the amount of restitution [he] owes determined by an evidentiary (restitution) hearing." By waiving both any objection to the claim form by accepting it as conclusive proof of the victim's economic loss and the right to an evidentiary restitution hearing at which he could challenge the victim's restitution claim and hold the state to its burden of proof, Piekosz has not only waived any substantive objection to the amount claimed, but also the right to the procedural mechanism by which he could have challenged it in the first instance. We grant review but deny relief.