State of Arizona v. Albert Junior Lopez

FILED BY CLERK
IN THE COURT OF APPEALS
STATE OF ARIZONA APR -8 2013
DIVISION TWO
COURT OF APPEALS
DIVISION TWO

THE STATE OF ARIZONA, )
)
Appellee, ) 2 CA-CR 2012-0153
) DEPARTMENT B
v. )
) OPINION
ALBERT JUNIOR LOPEZ, )
)
Appellant. )
)

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

Cause No. CR20104304001

Honorable Teresa Godoy, Judge Pro Tempore

AFFIRMED IN PART; VACATED IN PART

Thomas C. Horne, Arizona Attorney General
By Joseph T. Maziarz and David A. Sullivan Tucson
Attorneys for Appellee

Lori J. Lefferts, Pima County Public Defender
By Abigail Jensen Tucson
Attorneys for Appellant

V Á S Q U E Z, Presiding Judge.

¶1 Appellant Albert Lopez was convicted after a jury trial of possession of a

narcotic drug and possession of drug paraphernalia. The trial court sentenced him to

mitigated, concurrent prison terms, the longest of which is seven years. The court also

reduced various fines, fees, and assessments to a criminal restitution order (CRO), further

ordering that “no interest, penalties, or collection fees” would accrue “while the

defendant is in the Department of Corrections.” On appeal, Lopez asserts the court was

not permitted to reduce the monetary penalties to a CRO until his sentences had expired

and the CRO must therefore be vacated. We vacate the CRO but otherwise affirm

Lopez’s convictions and sentences.

¶2 In State v. Lewandowski, this court held that A.R.S. § 13-805,1 which

governs the entry of CROs, applies only at the expiration of a defendant’s sentence or

probation. 220 Ariz. 531, ¶ 15, 207 P.3d 784, 789 (App. 2009). We reasoned the

imposition of a CRO before the defendant’s probation or sentence has expired

“constitutes an illegal sentence, which is necessarily fundamental, reversible error,”

because the premature accrual of interest obligates the defendant to pay more than § 13-

805 requires. Id. Thus, as the state concedes, the trial court’s reduction of the fees, fines,

and assessments against Lopez to a CRO at sentencing was improper.

1
Section 13-805 has been amended three times since Lopez committed the
offenses here. See 2012 Ariz. Sess. Laws, ch. 269, § 1; 2011 Ariz. Sess. Laws, ch. 263, §
1 and ch. 99, § 4. We refer to the version in effect at the time of his offenses, see 2005
Ariz. Sess. Laws, ch. 260, § 6, but observe that, on these facts, the result would be the
same under the current version.

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¶3 The state asserts, however, that we need not vacate the CRO because Lopez

did not object at sentencing and therefore has not met on appeal his burden of

demonstrating any error prejudiced him. In most circumstances, a defendant’s failure to

object to alleged error in the trial court forfeits review for all but fundamental, prejudicial

error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005). But

this court held in State v. Vermuele that fundamental error review does not apply when

the “alleged [sentencing] error[] . . . did not become apparent until the trial court

pronounced sentence.” 226 Ariz. 399, ¶ 14, 249 P.3d 1099, 1103 (App. 2011). Nothing

in the record suggests Lopez had an opportunity to raise this error until the court

pronounced that sentence. Accordingly, Lopez need not demonstrate resulting prejudice.

¶4 As the state correctly points out, however, sentencing error may be subject

to harmless error review. See Lewandowski, 220 Ariz. 531, ¶ 10, 207 P.3d at 788; see

also Henderson, 210 Ariz. 561, ¶ 18, 115 P.3d at 607 (state has burden of demonstrating

harmless error). The state asserts the error here is harmless because the trial court further

ordered that no interest would accrue until Lopez’s sentence had expired. Thus, the state

reasons, the harm described in Lewandowski is not present in this case because no

premature interest will accrue.

¶5 But we agree with Lopez that the trial court lacked authority to delay the

imposition of interest, just as it lacked authority to enter a CRO in the first instance.

Nothing in § 13-805 permits a court to delay or alter the accrual of interest when a CRO

is “recorded and enforced as any civil judgment” pursuant to § 13-805(C). We are

extremely reluctant to deem an unauthorized act harmless because of a second

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unauthorized act. And we decline to speculate whether the court’s attempt to delay the

accrual of interest would be of any legal effect should we permit the unauthorized CRO

to remain. Cf. Jackson v. Schneider, 207 Ariz. 325, ¶ 10, 86 P.3d 381, 383-84 (App.

2004) (when trial court exceeds sentencing authority, sentence void as to excess portion).

Finally, should Lopez pay any of the fines, fees, or assessments while incarcerated, the

CRO would be inaccurate at the completion of his sentence. Thus, we conclude the state

has not met its burden of demonstrating the error is harmless. See Henderson, 210 Ariz.

561, ¶ 18, 115 P.3d at 607.

¶6 The CRO is vacated. Lopez’s convictions and sentences are otherwise

affirmed.

/s/ Garye L. Vásquez
GARYE L. VÁSQUEZ, Presiding Judge

CONCURRING:

/s/ Philip G. Espinosa
PHILIP G. ESPINOSA, Judge

/s/ Michael Miller
MICHAEL MILLER, Judge

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