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State v. Silverstein

Court of Appeals of Arizona, Second Division

December 16, 2013

The State of Arizona, Respondent,
Andrew Silverstein, Petitioner.

Not For Publication See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.

Petition for Review from the Superior Court in Pima County No. CR20103457002 The Honorable Teresa Godoy, Judge Pro Tempore

Thomas C. Horne, Arizona Attorney General By Michael Jette, Assistant Attorney General, Tucson Counsel for Respondent

Isabel G. Garcia, Pima County Legal Defender By Stephan J. McCaffery, Assistant Legal Defender, Tucson Counsel for Petitioner

Presiding Judge Vásquez authored the decision of the Court, in which Chief Judge Howard and Judge Miller concurred.


VÁSQUEZ, Presiding Judge

¶1 Andrew Silverstein seeks review of the trial court's order denying his petition for post-conviction relief and the court's denial of his request for counsel that accompanied his subsequent notice of post-conviction relief, which Silverstein characterizes as a "de facto" dismissal of that notice. We grant review and partial relief.

¶2 After being indicted for forty-six offenses stemming from a series of real estate transactions, Silverstein pled guilty to conspiracy, theft, money laundering, and illegally conducting an enterprise. The trial court suspended the imposition of sentence and placed Silverstein on concurrent terms of probation, the longest of which was seven years. The plea agreement provided that Silverstein would pay restitution to the "various victims" and that the restitution amount would be capped at $1, 000, 000 and based on "individual . . . victims' affidavits." At the sentencing hearing in January 2012, the court "retain[ed] jurisdiction over the issue of restitution."

¶3 In February 2012, the state filed a "Motion to Clarify, " stating it had been unable to reach a stipulation with Silverstein regarding the amount of restitution, and asked the court to order restitution totaling $574, 952.25. The motion did not list the victims or the individual amounts of restitution requested for each victim. The trial court, noting Silverstein had not responded, granted the motion and entered what it titled a "Restitution Order" on March 6, 2012. That order, consistent with the state's motion, stated that "restitution is ordered as follows" for "(1) Down Payments valued at $436, 688; and (2) Rental Premiums valued at $138, 264.25."

¶4 Silverstein filed a motion for reconsideration, arguing the state's documentation did not support the restitution figure, many of the individual claims were "specious" or "unsubstantiated, " the state "should be required to at least justify how it arrived at the figures it proposed, " and Silverstein is entitled to "credit" for a $120, 000 payment made to the Arizona Attorney General's Office "in the companion civil case." He claimed restitution should instead total $275, 468.71 and provided a spreadsheet listing approximately eighty victims. The record does not contain a ruling by the court on that motion.[1]

¶5 At the same time, Silverstein filed a notice of post- conviction relief stating he intended to pursue relief "from the judgment and sentence . . . entered on January 10, 2012."[2] He then filed a petition for post-conviction relief arguing: 1) the March 6 order did not comply with A.R.S. § 13-804(H) because it did not include the "total amount of restitution owed to each person" or the "manner in which the restitution is to be paid, " and thus should be vacated for "further sentencing proceedings to identify the victims, their direct economic losses, [and] the manner in which the restitution is to be paid"; 2) the state had failed to produce "victim affidavit[s]" as required by the plea agreement and that the victim impact statements provided were inadequate; 3) the amount listed in the March 6 order improperly "include[d] money" for victims not listed in the indictment; and 4) his claims are not precluded because, relying on State v. Vermuele, 226 Ariz. 399, 249 P.2d 1099 (App. 2011), he was "not required to object at sentencing in order to raise" the issues in a post-conviction proceeding.

¶6 The trial court summarily rejected Silverstein's claim based on § 13-804(H), determining that its failure to comply with the statutory requirements was merely "technical" and that relief was unavailable pursuant to Rule 32.1. It further determined that restitution properly included victims not listed in the indictment. It concluded, however, that Silverstein had presented a colorable claim whether the restitution amount properly could be supported by victim impact statements rather than affidavits and set an evidentiary hearing.

¶7 No evidentiary hearing was held, however. At a status conference, the state provided the court with the victim impact statements and the parties agreed that the state had not placed the victims under oath for the making of those statements. The court then took the matter under advisement, issuing a ruling approximately two weeks later. The court determined Silverstein had waived any claim that affidavits were required instead of victim impact statements because he did not object to the use of victim impact statements despite having had ample opportunities to do so. The court also determined that the use of such statements would not violate the terms of the plea agreement in any event.

¶8 Although the question does not appear to have been raised squarely by Silverstein in his petition for post-conviction relief, the trial court went on to evaluate whether the victim impact statements provided supported the amount of restitution provided in the March 6 order. The court then ordered that "the current restitution order be modified as set forth in the attached amended restitution order." The attached "order" consisted of a list of victims with the restitution owed to each, for a total restitution amount of $405, 132.25. The court declined to award restitution to some victims based on victim impact statements that did not show a claim or lacked sufficient information. For four other victims, the court "retain[ed] jurisdiction ...

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