STATE v. VAN SCHAIK

Annotate this Case

Download PDF

NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) ) ) ) ) Appellant. ) ) v. DREW VAN SCHAIK, DIVISION ONE FILED: 11/13/2012 RUTH A. WILLINGHAM, CLERK BY: sls 1 CA-CR 12-0019 DEPARTMENT S MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-151863-001 The Honorable Bruce R. Cohen, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Paul J. Prato, Deputy Public Defender Attorneys for Appellant Phoenix W I N T H R O P, Chief Judge ¶1 Drew Van Schaik ( Appellant ) appeals the trial court s order of restitution arising from his theft conviction. Appellant s counsel has filed a brief in accordance with Smith v. Robbins, 528 U.S. 259 (2000); Anders v. California, 386 U.S. 738 (1967); and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), stating that he has searched the record on appeal and found no arguable question of law that is not frivolous. Appellant s counsel therefore requests that we review the record for fundamental error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999) (stating that this court reviews the entire record for reversible error). Although this court granted Appellant the opportunity to file a supplemental brief in propria persona, he has not done so. He has, however, raised one issue through counsel that we address. ¶2 We have appellate jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (West 2012), 1 13-4031, and 13-4033(A). Finding no reversible error, we affirm Appellant s conviction and the court s order of restitution. I. ¶3 FACTS AND PROCEDURAL HISTORY 2 At trial, the State presented evidence of an internal investigation at the Walmart store where Appellant worked as a 1 We cite the current Westlaw version of the applicable statutes because no revisions material to this decision have since occurred. 2 We review the facts in the light most favorable to sustaining the verdict and resolve all reasonable inferences against Appellant. See State v. Kiper, 181 Ariz. 62, 64, 887 P.2d 592, 594 (App. 1994). 2 cashier. The evidence included testimony and documentation that Appellant s register had shortages amounting to at least $3501, and Appellant s admission to a police officer that, over time, he had taken an undetermined amount of money from the register. In addition, the arresting officer testified that, at the time of Appellant s arrest at Walmart, Appellant had exactly $2000 in cash in both his wallet and his front pants pocket. A jury found Appellant guilty of theft of less than $1000, a class one misdemeanor, in violation of A.R.S. § 13-1802. The trial court suspended probation, sentencing, placed Appellant on and scheduled a restitution hearing. ¶4 At the restitution hearing, the court considered the evidence presented at trial and the arguments of counsel, and after taking the matter under advisement, ordered that Appellant pay $3501 in restitution. Appellant filed a timely notice of appeal from the court s restitution order. II. ANALYSIS A. Restitution Above Amount Reflected in Guilty Verdict ¶5 Appellant questions whether the court could properly order that he pay restitution in the amount of $3501, given that the jury only convicted him of theft of less than $1000. We find no error, much less fundamental error. ¶6 Arizona gives a victim the right to receive prompt restitution from a person convicted of the criminal conduct that 3 caused the victim's loss. Ariz. Const. art. 2, § 2.1(A)(8). If a person is convicted of an offense, the court shall require the convicted person 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). A court has discretion to set the amount of restitution according to the facts . . . but some evidence must be presented that the amount bears a reasonable relationship restitution can be imposed. 9, 810 P.2d 631, 632 to the victim s loss before State v. Scroggins, 168 Ariz. 8, (App. 1991) (citations omitted). Restitution is not part of the adjudication of guilt, but part of sentencing; accordingly, the preponderance of the evidence. burden of proof is by In re Stephanie B., 204 Ariz. 466, 469-70, ¶ 15, 65 P.3d 114, 117-18 (App. 2003). ¶7 At trial, the State submitted evidence that the victim (Walmart) suffered an economic loss of at least $3501. Although the jury did not find the full amount proved beyond a reasonable doubt for the purpose of determining Appellant s guilt, see id., the trial court could have reasonably relied on the evidence and determined that the lesser preponderance-of-the-evidence standard had been met for restitution purposes. See State v. Fancher, 169 Ariz. 266, 267-68, 818 P.2d 251, 252-53 (App. 1991) (holding that the trial court has the authority to order restitution in full for damages caused by the criminal offense 4 including restitution in excess of amounts alleged in charging documents on which convictions were based ). Accordingly, we find in no error, much less fundamental error, the court s decision to order restitution in an amount greater than that reflected by Appellant s conviction. B. Other Issues ¶8 We have reviewed error and find none. the entire record for reversible See Leon, 104 Ariz. at 300, 451 P.2d at 881; Clark, 196 Ariz. at 537, ¶ 30, 2 P.3d at 96. The evidence presented the at trial was order of restitution. substantial and supports court s Appellant was represented by counsel at all stages of the proceedings, was present at trial, and the court found that he waived the opportunity to appear at the restitution hearing. The proceedings were conducted in compliance with his constitutional and statutory rights and the Arizona Rules of Criminal Procedure. ¶9 After obligations appeal have filing pertaining ended. of to this decision, Appellant s Counsel need do defense counsel s representation no more than in this inform Appellant of the status of the appeal and of his future options, unless counsel s review reveals an issue appropriate petition for review to the Arizona Supreme Court. for See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Appellant has thirty days from the date of this decision to 5 proceed, if he desires, with a pro per motion for reconsideration or petition for review. III. ¶10 Appellant s CONCLUSION conviction and the trial court s restitution order are affirmed. _______________/S/_______________ LAWRENCE F. WINTHROP, Chief Judge CONCURRING: _____________/S/___________________ MICHAEL J. BROWN, Judge _____________/S/___________________ MARGARET H. DOWNIE, Judge 6

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.