State v. Haver ( 2019 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
TERRY LEE HAVER, Appellant.
No. 1 CA-CR 18-0604
FILED 7-18-2019
Appeal from the Superior Court in Maricopa County
No. CR2011-005364-001
The Honorable George H. Foster, Jr., Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Gracynthia Claw
Counsel for Appellee
Bain & Lauritano, PLC, Glendale
By Sheri M. Lauritano
Counsel for Appellant
STATE v. HAVER
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in
which Judge Samuel A. Thumma and Judge Michael J. Brown joined.
P E R K I N S, Judge:
¶1 Terry Haver appeals the trial court’s restitution order arising
from his June 2016 convictions for theft and forgery. For the following
reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 We view the evidence in the light most favorable to
upholding the trial court’s restitution order. State v. Leon, 240 Ariz. 492, 494,
¶ 2 (App. 2016). In April 2016, a jury found Haver guilty of multiple counts
of theft and forgery. After sentencing in June 2016, this Court affirmed
Haver’s convictions in December 2017 and remanded for recalculation of
Haver’s presentence incarceration credit. See State v. Haver (Haver I), 1 CA-
CR 16-0419, 2017 WL 6459789, *2, ¶ 13 (Ariz. App. Dec. 19, 2017) (mem.
decision). The State sought restitution on behalf of four of Haver’s victims.
The trial court, after an evidentiary hearing, ordered Haver pay restitution
totaling $199,393.64. Haver timely appeals from that July 2018 restitution
order.
DISCUSSION
¶3 The trial court has “wide discretion” in determining criminal
restitution. State v. Ellis, 172 Ariz. 549, 551 (App. 1992). We therefore review
the court’s restitution order for abuse of discretion. See State v. Lindsley, 191
Ariz. 195, 197 (App. 1997) (we will uphold a restitution order “if it bears a
reasonable relationship to the victim’s loss”).
¶4 In this appeal, Haver argues the State failed to present
sufficient evidence to support the charges against him and, as a result, the
trial court erred in denying the motion for acquittal he made under Arizona
Rule of Criminal Procedure (“Rule”) 20(a)(1). The trial court’s ruling on a
Rule 20 motion is directly appealable, however, and would have been
properly before this Court in his prior appeal. See Haver I, 1 CA-CR 16-0419
at *2, ¶¶ 8, 12; Ariz. R. Crim. P. 31.2; State v. Cannon, 192 Ariz. 236, 238, ¶¶
5–7 (direct appeal from trial court’s ruling on a Rule 20 motion). Thus,
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STATE v. HAVER
Decision of the Court
Haver’s July 2018 notice of appeal could not serve as a timely appeal of his
June 2016 convictions and sentences.
¶5 Haver waived any arguments he failed to raise regarding the
propriety of his convictions and sentences in his prior appeal. State v.
Nirschel, 155 Ariz. 206, 208 (1987) (failure to argue a claim generally
constitutes waiver). In this subsequent appeal from the July 2018 restitution
order, Haver cannot challenge the denial of his Rule 20 motion addressing
the underlying criminal offenses. State v. Youngblood, 173 Ariz. 502, 504
(1993) (“All claims or issues arising out of the same nucleus of operative
facts must be presented at the same time, or else they are precluded.”).
Moreover, we do not permit defendants to re-challenge their convictions in
an appeal from restitution when we have previously affirmed those
convictions. See State v. Dann, 220 Ariz. 351, 360, ¶ 26 (2009).
¶6 Haver has shown no error in imposing restitution as a result
of his convictions.
CONCLUSION
¶7 We affirm the trial court’s restitution order.
AMY M. WOOD • Clerk of the Court
FILED: AA
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