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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
IN RE MONTEITH C.
No. 1 CA-JV 21-0082
FILED 9-30-2021
Appeal from the Superior Court in Mohave County
No. S8015JV202000074
The Honorable Megan A. McCoy, Judge Pro Tempore
AFFIRMED
COUNSEL
Law Offices of Harriette P. Levitt, Tucson
By Harriette P. Levitt
Counsel for Appellant
Mohave County Attorney’s Office, Kingman
By Deborah L. Herbert
Counsel for Appellee
IN RE MONTEITH C.
Decision of the Court
MEMORANDUM DECISION
Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge Cynthia J. Bailey and Judge Maria Elena Cruz joined.
P E R K I N S, Judge:
¶1 Monteith C. appeals the juvenile court’s order awarding
$9,223.95 in restitution. For the reasons below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 We view the facts in the light most favorable to affirming the
juvenile court’s restitution decision. In re Andrew C., 215 Ariz. 366, 367, ¶ 6
(App. 2007). In January 2020, Monteith and Brigham H. stole guns,
ammunition, knives, and related items from D.D.’s home and truck.
Monteith and Brigham then fired multiple gun shots at G.D.’s commercial
building. The bullets damaged the building’s exterior walls, roof, and two
doors. In June 2020, the State petitioned to have Monteith adjudicated
delinquent on eight counts: two counts of burglary; three counts of theft of
a firearm; theft; criminal damage; and minor in possession of firearms.
¶3 In August 2020, Monteith entered a disposition agreement,
pleading delinquent to three counts of theft of a firearm and one count of
criminal damage. Monteith agreed to pay restitution on all charges,
including the dismissed charges. Victims G.D. and D.D. timely sought
restitution from Monteith and Brigham. In September 2020, the juvenile
court placed Monteith on probation and set a restitution hearing.
¶4 At a two-day restitution hearing, the juvenile court received
testimony from several witnesses, accepted exhibits, and heard argument
from the State and Monteith’s trial counsel. Monteith, through counsel,
cross-examined the victims, challenged their valuations, and called a
defense expert to rebut D.D.’s testimony about the value of his guns. The
victims offered testimony and evidence to support claims for replacing their
damaged property, including D.D.’s property that was damaged before
being recovered. Monteith and Brigham denied damaging D.D.’s property
and provided testimony and evidence purporting to show the sufficiency
and costs of repairing the victims’ damaged property. The court found the
victims credible and awarded $4,473.95 to G.D. and $4,750.00 to D.D.
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IN RE MONTEITH C.
Decision of the Court
¶5 The juvenile court found the victims’ requests reasonable,
supported by the evidence, and “conservative compared to their true total
costs.” The court also noted that victims need not accept a repair over a
replacement. Monteith timely appealed, and we have jurisdiction under
Article 6, Section 9, of the Arizona Constitution and A.R.S. § 8-235(A).
DISCUSSION
I. Restitution
¶6 Monteith argues the juvenile court abused its discretion in
awarding the victims over $9,000 in restitution. After adjudicating a
juvenile delinquent, the court “shall order the juvenile to make full or
partial restitution to the victim of the offense.” A.R.S. § 8-344(A). Restitution
is proper for losses that “(1) are economic, (2) would not have occurred but
for the juvenile’s delinquent conduct, and (3) are directly caused by the
delinquent conduct (e.g. not consequential damages).” Andrew C., 215 Ariz.
at 368, ¶ 9. We review restitution awards for an abuse of discretion and will
not reweigh evidence, only looking to determine if there is sufficient
evidence to sustain the award. In re William L., 211 Ariz. 236, 239, ¶ 10 (App.
2005); In re Andrew A., 203 Ariz. 585, 587, ¶ 9 (App. 2002).
¶7 “Arizona permits restitution for a wide variety of expenses,
so long as those expenses flow directly from the defendant’s criminal
conduct.” State v. Quijada, 246 Ariz. 356, 369, ¶ 43 (App. 2019) (cleaned up).
Trial courts have “broad discretion in setting the restitution amount based
on the facts of the case,” but “may not order restitution that would make
the victim more than whole.” William L., 211 Ariz. at 239, ¶ 12. A court may
award restitution for expenses that are “incurred in an effort to restore the
victim’s equanimity following the criminal offense.” See Quijada, 246 Ariz.
at 369, ¶ 44 (cleaned up). Victims need not settle for “spot fixing” damage
when doing so would fail to restore their equanimity and leave them less
than whole. See id.
¶8 Victims must prove restitution claims by a preponderance of
the evidence and courts may consider a victim’s testimony about the value
of items. In re Stephanie B., 204 Ariz. 466, 470, ¶ 15 (App. 2003); State v.
Rushing, 156 Ariz. 1, 4 (1988).
¶9 Monteith claims the juvenile court granted the victims a
“windfall” and made them “more than whole” by awarding over $9,000 in
restitution, an amount that included the replacement value of many items.
But the court found the victims’ testimony credible and supported by the
evidence. Both victims sought replacement or repair costs for items
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IN RE MONTEITH C.
Decision of the Court
Monteith agreed he was responsible for. The victims testified they would
be unsatisfied with the repairs Monteith proposed. They requested
replacement values, and the court, in its discretion, adopted the valuation
method the victims requested. And the victims presented sufficient
evidence to sustain the award. Monteith asks us to reweigh evidence and
reassess witness credibility, which we will not do. See Andrew A., 203 Ariz.
at 587, ¶ 9. The victims’ testimony sufficiently linked their losses and
Monteith’s actions. We find no abuse of discretion.
II. Ineffective Assistance
¶10 To successfully plead a colorable claim of ineffective
assistance of counsel, Monteith must show that counsel’s performance fell
below objectively reasonable standards and that the deficient performance
prejudiced him. See Strickland v. Washington, 466 U.S. 668, 687 (1984).
Monteith bears the burden of overcoming, with more than mere
speculation, the strong presumption that his attorney provided effective
assistance. See id. at 687–89; see also State v. Rosario, 195 Ariz. 264, 268, ¶ 23
(App. 1999).
¶11 Nothing in the record shows Monteith’s attorney’s
performance fell below objectively reasonable standards. Counsel
challenged the victims’ credibility and their valuations and presented
alternative theories of compensation for the victims. Counsel also diligently
litigated the case through presentation of exhibits, witnesses to rebut the
estimates provided by the victims, testimony from Monteith and Brigham,
and written closing arguments.
¶12 Monteith presents other strategies his attorney could have
employed. But having innovative ideas for trial strategy, without showing
counsel’s actions fell outside the realm of competence and reasonableness,
is mere speculation and cannot overcome the strong presumption that
counsel’s conduct falls within the acceptable range. See Rosario, 195 Ariz. at
268, ¶ 23. Monteith failed to prove his attorney’s performance fell below
objectively reasonable standards. We, therefore, need not consider whether
Monteith proved prejudice. See State v. Salazar, 146 Ariz. 540, 541 (1985).
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IN RE MONTEITH C.
Decision of the Court
CONCLUSION
¶13 We affirm the juvenile court’s restitution award.
AMY M. WOOD • Clerk of the Court
FILED: AA
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