State v. Moore

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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, Respondent,

v.

HEIDI LYNN MOORE, Petitioner.

No. 1 CA-CR 23-0494 PRPC
FILED 07-09-2024

Petition for Review from the Superior Court in Maricopa County
No. CR2019-116389-001
The Honorable Therese Ann Gantz, Judge Pro Tempore

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Bradley F. Perry
Counsel for Respondent

Apfel Law Group, Phoenix
By Seth Apfel
Counsel for Petitioner
 STATE v. MOORE
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the Court’s decision, in which
Judge Maria Elena Cruz and Judge Cynthia J. Bailey joined.

M c M U R D I E, Judge:

¶1 Heidi Moore petitions for review of the superior court’s order
dismissing her post-conviction relief (“PCR”) petition filed under Arizona
Rule of Criminal Procedure (“Rule”) 33.1. Moore argues that the extradition
costs imposed against her are an illegally excessive fine under the Eighth
Amendment and its Arizona counterpart. We grant review but deny relief.

FACTS AND PROCEDURAL BACKGROUND

¶2 In September 2019, Moore pled guilty to possession of
narcotic drugs for sale, a Class 2 non-dangerous felony. The superior court
suspended her sentence and placed her on three years of probation, with
the condition that she serve 12 months in the county jail. In May 2020,
Moore moved for jail modification because of the COVID-19 pandemic. The
superior court granted the motion and ordered that the jail sentence be
deferred until January 2021 if she was placed in a particular treatment
program.

¶3 In September 2020, the FBI arrested Moore for conspiracy to
distribute methamphetamine and heroin.1 After, the State petitioned to
revoke Moore’s probation based on the alleged federal offense and other
probation term noncompliance. In November 2022, the State petitioned for
a writ of habeas corpus ad prosequendum to extradite Moore to Arizona for her
initial appearance because she was in federal custody in Florida. The
superior court granted the writ. The next month, Moore petitioned for
revocation of her probation and stated that she agreed to “authorize[] a
Waiver of Appearance due to COVID-19 restrictions” and to “[r]evoke any
remaining balance of probation” and asked that the sentence run
concurrently with her federal sentence.

1 In 2022, Moore pled guilty to a lesser-included conspiracy to
distribute offense and was sentenced to 60 months’ imprisonment.

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Decision of the Court

¶4 Shortly after, two Maricopa County Sheriff’s Office deputies
flew to Florida to bring Moore to Arizona. The deputies bought flights,
rented a car, and stayed in a hotel. After personnel costs, the Sheriff’s Office
spent about $7,974.

¶5 In January 2023, Moore appeared for a probation revocation
arraignment. Moore denied the alleged probation violations, and the court
scheduled a violation hearing. At the hearing, Moore rejected probation,
and the court sentenced her to three years’ imprisonment with 490 days of
presentence credit for time served.2 The court also ordered briefing on the
extradition costs.

¶6 Moore objected to the imposition of extradition costs. Her
objection stated that the State cannot seek reimbursement of extradition
costs as restitution. Instead, she argued the costs can only be imposed as a
fine. And she argued that such a fine would be impermissibly excessive
under state and federal law. The court disagreed and ordered Moore to
reimburse the State for its extradition expenses under A.R.S. § 13-3870.02
and found that the amount was neither a fine nor restitution.

¶7 In July 2023, Moore filed a PCR petition under Rules 33.1(a)
and 33.1(c) and contested the extradition costs. The superior court
summarily dismissed the PCR petition. Moore petitioned for this court’s
review, and we have jurisdiction under A.R.S. § 13-4239(C) and Rule
33.16(a)(1).

DISCUSSION

¶8 We review the superior court’s decision to deny
post-conviction relief for abuse of discretion, and we will affirm the

2 We note that the superior court erred by giving presentence credit
for some of her time spent in federal custody in 2022. To obtain presentence
incarceration credit, “a defendant must show that the Arizona charge was
a ‘but for cause’ of his or her out-of-state presentence incarceration.” State
v. Cecena, 235 Ariz. 623, 626, ¶ 10 (App. 2014) (citation and internal
quotations omitted). Regardless of Moore’s state charge, Moore was in
federal custody for a federal charge. Moore was not in custody for her
Arizona charge until she was released into state custody on December 28,
2022. Thus, the court erred in its calculation. See id. But because the State
did not raise the challenge, we will not modify the illegal sentence. See State
v. Dawson, 164 Ariz. 278, 281-82 (1990).

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decision “if it is legally correct for any reason.” State v. Roseberry, 237 Ariz.
507, 508, ¶ 7 (2015). We defer to the superior court’s factual findings unless
clearly erroneous and review the court’s legal conclusions de novo. State v.
Swoopes, 216 Ariz. 390, 393, ¶ 4 (App. 2007); State v. Reed, 252 Ariz. 236, 238,
¶ 6 (App. 2021). We also review questions of statutory interpretation de novo
and “interpret statutes to give effect to the legislature’s intent.” Kent K. v.
Bobby M., 210 Ariz. 279, 282, 283, ¶¶ 8, n.6, 14 (2005).

¶9 Moore petitions for relief under Rules 33.1(a) and 33.1(c). Rule
33.1(a) provides for post-conviction relief when “the
defendant’s . . . sentence was imposed . . . in violation of the United States
or Arizona constitutions.” Similarly, Rule 33.1(c) provides a defendant
relief when “the sentence as imposed is not authorized by law or by the plea
agreement.” Moore argues that she is entitled to relief under both grounds
because the extradition costs imposed against her are part of her sentence
and constitute an illegally excessive fine. See U.S. Const. amend. VIII; Ariz.
Const. art. 2, § 15 (constitutional prohibitions on excessive fines).

A. The Extradition Costs Are Not a Fine Contemplated by The
Excessive Fines Clause.

¶10 Moore contests the extradition costs in her sentence and
asserts that, under State v. Maupin, the court can impose extradition costs
only as a fine, not as restitution. See 166 Ariz. 250 (App. 1990). Viewing the
extradition costs as a fine under Maupin, Moore contends that the fine is
excessive and thus the sentence is illegal.

¶11 In the State’s response to Moore’s PCR petition below,3 the
State argued that Moore misread Maupin to prevent the State’s recovery of
extradition costs through restitution. The State asserted that Maupin and
A.R.S. § 13-3870.02 allowed the superior court to order a defendant to
reimburse the State for its extradition costs and that such an order is not a
fine and thus does not trigger the Excessive Fines Clause in the United
States or Arizona constitutions.

3 The State filed a Notice of Acknowledgment with this court stating
that it did not intend to respond to the petition for review because Moore’s
argument “is the same as the argument she advanced below.” So when
referencing the State’s argument, we use the State’s argument advanced
below.

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¶12 We agree with the State’s interpretation of Maupin and A.R.S.
§ 13-3870.02. In 1990, this court held in Maupin that “a trial court has
authority, pursuant to A.R.S. § 13-804, to order a defendant, as part of a
sentence, to pay the costs of extradition.” 166 Ariz. at 253. And Section
13-804 states in part, “On a defendant’s conviction for an offense causing
economic loss to any person, the court, in its sole discretion, may order that
all or any portion of the fine imposed be allocated as restitution to be paid by
the defendant.” A.R.S. § 13-804(A) (emphasis added). To be sure, the statute
does seem to conflate a fine and restitution when it refers to a
“fine . . . allocated as restitution.” See id. Maupin commented that “the
technical letter of A.R.S. § 13-804(A)” requires the court to “designate
appellant’s extradition costs as a fine.” Maupin, 166 Ariz. at 253. But the
court considered that distinction irrelevant to whether a court has
jurisdiction to order extradition costs as part of a sentence. Id. Maupin does
not prohibit the superior court from imposing extradition costs as
restitution. See id.

¶13 And in 2004, the legislature eliminated semantic confusion by
enacting A.R.S. § 13-3870.02, which authorizes the State to recover
extradition costs from the defendant and omits the terms “fine” and
“restitution.” See A.R.S. § 13-3870.02. The statute provides, “On conviction
of the crime that caused a person to be extradited to this state, the state or
political subdivision, either jointly or severally, may recover from the
convicted person the actual expenses incurred by the extraditing agency.”
Id.

¶14 Extradition costs under the statute are a form of restitution.
See A.R.S. § 13-3870.02. Restitution seeks to make a person whole, not to
inflict punishment. See In re Estate of Vigliotto, 178 Ariz. 67, 69 (App. 1993);
see also State v. Zaputil, 220 Ariz. 425, 428, ¶ 11 (App. 2008). On the other
hand, a fine “is a pecuniary punishment and a sanction.” State v. Russo, 219
Ariz. 223, 227, ¶ 15 (App. 2008). Here, the extradition costs statute concerns
the State’s ability to “recover . . . actual expenses.” A.R.S. § 13-3870.02. Thus,
the statute intends to make the State whole, not punish the defendant.
Compare Vigliotto, 178 Ariz. at 69 (restitution’s purpose), with Russo, 219
Ariz. at 227, ¶ 15 (a fine’s purpose).

¶15 Neither the Eighth Amendment nor Article 2, Section 15 of the
Arizona Constitution contemplates Section 13-3870.02’s reimbursement
scheme. Those constitutional provisions instruct that “[e]xcessive bail shall
not be required, nor excessive fines imposed, nor cruel and unusual
punishment inflicted.” See U.S. Const. amend. VIII; Ariz. Const. art. 2, § 15.
An excessive fine is “one that exceeds reasonable, usual, proper, or just

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punishment.” State v. Wise, 164 Ariz. 574, 576 (App. 1990). The clause thus
contemplates payments ordered as punishment, which again is not the type
of payment permitted by Section 13-3870.02. As a result, the extradition
costs in Moore’s sentence do not implicate the Excessive Fines Clause. See
U.S. Const. amend. VIII; Ariz. Const. art. 2, § 15.

B. The Extradition Costs Do Not Violate the Excessive Fines Clause.

¶16 Even if we were to consider the extradition costs a fine that
triggers the Excessive Fines Clause, the costs are not excessive. See U.S.
Const. amend. VIII; Ariz. Const. art. 2, § 15. Moore argues that the
extradition costs are excessive because she did not leave Arizona
voluntarily, waived her appearance at the probation revocation
proceedings, cannot pay, and the extradition costs were incurred
unnecessarily. We disagree.

¶17 An excessive fine is “one that exceeds reasonable, usual,
proper, or just punishment” or “is so disproportionate to the offense that it
shocks public sentiment and affronts the [judgment] of reasonable people.”
Wise, 164 Ariz. at 576. Here, the superior court considered the State’s list
that itemized its travel expenses and personnel costs. Reasonable record
evidence supports that the $7,974 imposed against Moore was the actual
cost to bring Moore from Florida to Arizona. Reimbursement for actual
costs expended is precisely what the extradition statute allows. See A.R.S.
§ 13-3870.02 (“[T]he state . . . may recover . . . the actual expenses incurred
by the extraditing agency.”).

¶18 Still, we address briefly each of Moore’s arguments about
why the costs are excessive. First, Moore claims they are excessive because
she did not leave Arizona voluntarily. But the State’s right to
reimbursement does not depend on whether the defendant left the state
voluntarily. See A.R.S. § 13-3870.02. We decline to add a voluntariness
consideration to the extradition statute. Second, Moore argues that she
should not be ordered to pay the extradition costs when she agreed to waive
her appearance at the relevant proceedings. But a defendant’s desire to
waive her appearance does not necessarily mean she may do so. See State v.
Fettis, 136 Ariz. 58, 59 (1983) (“[T]he defendant must be present at his
sentencing except in extraordinary circumstances[.]”). Third, she contends
that the costs are excessive because she cannot pay them. Although the
defendant’s ability to pay is a factor in determining whether a fine is
excessive, it is not dispositive. Wise, 164 Ariz. at 576. And we cannot say
that $7,974 to extradite a defendant across the country “shocks public
sentiment and affronts the [judgment] of reasonable people.” See id.

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¶19 Moore also argues that the costs the State incurred to extradite
her were unnecessary.4 For example, she claims there was no showing that
the extradition required two deputies instead of one. We agree with Moore
that, depending on the facts, certain incurred costs might be unreasonable.
But the superior court considered Moore’s objection before imposing the
costs. Thus, we assume the superior court found the costs reasonable and
defer to its finding. See Swoopes, 216 Ariz. at 393, ¶ 4.

¶20 Because the imposition of extradition costs against Moore
does not render her sentence unconstitutional or illegal, the superior court
did not abuse its discretion by dismissing Moore’s PCR petition. See Ariz.
R. Crim. P. 33.1(a), (c).

CONCLUSION

¶21 We grant review but deny relief.

AMY M. WOOD • Clerk of the Court
FILED: AGFV

4 Moore argues in part that the costs are excessive because the
probation revocation petition was “factually invalid” and effectively “for a
single failed drug test.” She claims that “the imposition of an $8,000 fine is
grossly excessive when considered in this context.” But the petition’s
validity is outside the scope of this PCR review. See Ariz. R. Crim. P. 33.1(a),
(c). The superior court granted the extradition writ, so the State could
extradite Moore. We thus consider only the legality of the costs imposed
against Moore.

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