State of Arizona v. Luis Alberto Moreno-Medrano ( 2008 )

FILED BY CLERK
IN THE COURT OF APPEALS JUN 17 2008
STATE OF ARIZONA COURT OF APPEALS
DIVISION TWO DIVISION TWO
THE STATE OF ARIZONA, )
) 2 CA-CR 2007-0202
Appellee, ) DEPARTMENT A
)
v. ) OPINION
)
LUIS ALBERTO MORENO-MEDRANO, )
)
Appellant. )
)
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR-20062797
Honorable Paul Tang, Judge
Honorable Stephen C. Villarreal, Judge
AFFIRMED
Terry Goddard, Arizona Attorney General
By Randall M. Howe and Laura P. Chiasson Tucson
Attorneys for Appellee
Robert J. Hirsh, Pima County Public Defender
By Rose Weston Tucson
Attorneys for Appellant
H O W A R D, Presiding Judge.
¶1 After a jury trial, appellant Luis Moreno-Medrano was convicted of aggravated
assault with a deadly weapon or dangerous instrument and attempted armed robbery, both
dangerous-nature offenses. The court sentenced him to concurrent, presumptive prison
terms of 7.5 years. On appeal, Moreno-Medrano claims the court erred in denying his
motion to suppress a statement he had made to police, ordering him to pay attorney fees
without making certain factual findings, entering a criminal restitution order with respect to
the fees imposed, and considering his claim of innocence as a denial of responsibility at
sentencing. Finding no error, we affirm.
Facts
¶2 “We view the facts in the light most favorable to sustaining the convictions.”
State v. Robles, 213 Ariz. 268, ¶ 2, 141 P.3d 748, 750 (App. 2006). Moreno-Medrano
approached the victim, a delivery driver, who was unloading a truck outside a business.
Moreno-Medrano asked if he could help unload the truck, but the victim said that company
policy prohibited it. Moreno-Medrano left but returned a short time later and pointed a gun
at the victim, demanding money. The victim ran to the other side of the trailer on his truck
and hid. Moreno-Medrano apparently left. The victim went to a nearby restaurant and
asked the manager to call the police. The police apprehended Moreno-Medrano and the
victim identified him. Moreno-Medrano was convicted and now appeals.
Motion to Suppress
¶3 Moreno-Medrano argues the trial court erred in denying his motion to suppress
his statement to the police, contending he did not validly waive his rights under Miranda
v. Arizona, 384 U.S. 436 (1966). We review the court’s ruling for an abuse of discretion,
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considering only the evidence presented at the suppression hearing and viewing that
evidence in the light most favorable to sustaining the trial court’s ruling. See State v. Gay,
214 Ariz. 214, ¶ 30, 150 P.3d 787, 796 (App. 2007). We review de novo the court’s legal
conclusions. See State v. Smith, 197 Ariz. 333, ¶ 2, 4 P.3d 388, 390 (App. 1999).
¶4 “‘Answering questions after police properly give the Miranda warnings
constitutes a waiver by conduct.’” State v. Trostle, 191 Ariz. 4, 14, 951 P.2d 869, 879
(1997), quoting State v. Tapia, 159 Ariz. 284, 287, 767 P.2d 5, 8 (1988); see also North
Carolina v. Butler, 441 U.S. 369, 373 (1979). During a custodial interrogation, a detective
advised Moreno-Medrano of his rights pursuant to Miranda. The detective asked Moreno-
Medrano if he understood his rights. Moreno-Medrano said “yes.” Without specifically
asking if Moreno-Medrano waived those rights, the detective then began asking Moreno-
Medrano questions about the incident. Moreno-Medrano answered all questions without
asking for counsel and without attempting to terminate the interview.
¶5 By stating that he understood his rights and then engaging in “a course of
conduct indicating waiver,” Butler, 441 U.S. at 373, Moreno-Medrano validly waived his
rights to remain silent and to have counsel present. See State v. Montes, 136 Ariz. 491, 495-
96, 667 P.2d 191, 195-96 (1983) (waiver by conduct where defendant indicated he
understood rights, answered questions freely, did not seek counsel, and did not try to
terminate questioning). The trial court therefore did not abuse its discretion in denying his
motion to suppress the statement.
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¶6 Moreno-Medrano further argues that because the evidence shows the police
department routinely fails to obtain explicit waivers and even trains officers “to affirmatively
ignore any inquiry” regarding waiver, “the spirit and intent of Miranda” are not being
fulfilled. He suggests we draw a distinction between inadvertent failure to obtain an explicit
waiver and this officer’s deliberate failure to obtain an explicit waiver. We agree that the
better practice is to obtain an explicit waiver from the suspect. But our supreme court has
held, without considering the subjective intent of the officer, that an explicit waiver is not
required. See Trostle, 191 Ariz. at 14, 951 P.2d at 879; see also State v. Jones, 203 Ariz.
1, ¶ 9, 49 P.3d 273, 277 (2002) (explicit statement waiving Miranda not required). We
cannot disregard the decisions of our supreme court. State v. Newnom, 208 Ariz. 507, ¶ 8,
95 P.3d 950, 951 (App. 2004). Moreover, the general practices of the police department
are not relevant to the inquiry of whether, on the facts of this case, the defendant
intelligently and knowingly waived his rights by conduct. See Montes, 136 Ariz. at 495, 667
P.2d at 195 (waiver determination “focuses on the particular facts and circumstances
surrounding a case”).
Imposition of Fees
¶7 Moreno-Medrano also argues the trial court committed fundamental error
when it ordered him to reimburse Pima County $400 in attorney fees and pay a $25 indigent
administrative assessment without first ascertaining his financial ability to pay these amounts.
He did not, however, object to the imposition of fees at arraignment or at sentencing. When
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a defendant does not object below to an alleged error, we review solely for fundamental
error. State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005). Fundamental
error is “‘error going to the foundation of the case, error that takes from the defendant a right
essential to his defense, and error of such magnitude that the defendant could not possibly
have received a fair trial.’” Id., quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980,
982 (1984). “To prevail under this standard of review, a defendant must establish both that
fundamental error exists and that the error in his case caused him prejudice.” Id. ¶ 20.
¶8 The fees at issue were imposed pursuant to A.R.S. § 11-584 and Rule 6.7(d),
Ariz. R. Crim. P. Section 11-584(B)(1) authorizes the court to assess defendants “an
indigent administrative assessment of not more than twenty-five dollars.” Section 11-
584(B)(3) permits the court to require a defendant to “repay to the county a reasonable
amount to reimburse the county for the cost of the defendant’s legal defense.” Section 11-
584(C) provides that when “determining the amount and method of payment[,] the court
shall take into account the financial resources of the defendant and the nature of the burden
that the payment will impose.” Finally, Rule 6.7(d) provides that, if the court determines
the defendant has the “financial resources which enable him or her to offset in part the costs
of the legal services to be provided, the court shall” require the defendant to pay “such
amount as [the court] finds he or she is able to pay without incurring substantial hardship.”
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¶9 Before imposing fees pursuant to § 11-584 and Rule 6.7(d), the court is
required to make specific factual findings that the defendant has the ability to pay the fees
imposed and that the fees will not cause a substantial hardship. State v. Taylor, 216 Ariz.
327, ¶ 25, 166 P.3d 118, 125 (App. 2007). The court must also make a finding regarding
the actual cost of the legal services provided. See id. However, if a defendant fails to pay
the assessed fees, counsel cannot withdraw and the defendant will not face contempt
proceedings. Ariz. R. Crim. P. 6.7(d); see also Espinoza v. Superior Court, 166 Ariz. 557,
561-62, 804 P.2d 90, 94-95 (1991). Rather, the order of fees may only be enforced as a
civil judgment. See Ariz. R. Crim. P. 6.7(d); Espinoza, 166 Ariz. at 562, 804 P.2d at 95.
¶10 The court imposed these fees at Moreno-Medrano’s arraignment and
reconfirmed the obligation at sentencing. It is unclear from the record whether the court had
all of Moreno-Medrano’s financial information available to it at the arraignment, but it did
not make express findings regarding Moreno-Medrano’s financial status at either hearing.
¶11 Division One of this court has held that the failure to make the required
findings before imposing attorney fees constituted fundamental error. See State v. Lopez,
175 Ariz. 79, 82, 853 P.2d 1126, 1129 (App. 1993). The court predicated its conclusion
in Lopez on the observation that the right to counsel is fundamental under both the United
States and Arizona Constitutions. Id. It then concluded that, therefore, the failure to make
the findings provided for in Rule 6.7(d) was fundamental error. Lopez, 175 Ariz. at 82, 853
P.2d at 1129.
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¶12 We cannot agree that the fundamental nature of the right to counsel compels
the conclusion that the court’s failure to make the requisite findings regarding reimbursement
constitutes fundamental error. The Lopez court cited Espinoza for its holding that the
contribution provisions in § 11-584 and Rule 6.7(d) do not violate a defendant’s
fundamental right to representation. Lopez, 175 Ariz. at 82, 853 P.2d at 1129. Espinoza
so held because “[c]ounsel cannot withdraw, and the defendant does not face potential
imprisonment for contempt for failing to comply with the order.” 166 Ariz. at 561-62, 804
P.2d at 94-95. Thus, a defendant’s fundamental right to counsel remains intact regardless
of the reimbursement order or the defendant’s failure to comply with it.
¶13 Moreover, Lopez preceded Henderson and its clarification of the fundamental
error standard. And failing to make the required findings cannot fairly be characterized as
one of those “rare” circumstances that deprives the defendant of a right essential to his
defense or otherwise renders it impossible for him to have had a fair trial. See Henderson,
210 Ariz. 561, ¶ 19, 115 P.3d at 607. After Henderson, we conclude this part of Lopez is
no longer correct and find that the imposition of the fees without the findings was not
fundamental error.
¶14 We also conclude that Moreno-Medrano has failed to show that the trial court
did not consider his financial ability in imposing these fees and thereby committed
fundamental error. Both a report prepared by pretrial services before his arraignment and
the presentence report contained information about Moreno-Medrano’s financial
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circumstances. Nothing in the record indicates that the court failed to consider this
information. See State v. Medrano, 185 Ariz. 192, 196, 914 P.2d 225, 229 (1996) (“Judges
are presumed to know and follow the law and to consider all relevant sentencing information
before them.”). Moreover, Moreno-Medrano has not produced any authority to suggest an
alleged error in considering his ability to pay is fundamental. See Henderson, 210 Ariz.
561, ¶¶ 22, 24, 115 P.3d at 608 (appellant has burden to show error and that error is
fundamental).
¶15 Moreno-Medrano also appears to argue it would have been fundamental error
to impose the fees even if the court had made the requisite findings. He claims that
information in the presentence report shows he did not have the financial ability to
contribute to the cost of his defense and cites State v. Torres-Soto, 187 Ariz. 144, 146, 927
P.2d 804, 806 (App. 1996), for the proposition that “overriding considerations about
integrity of [the] justice system” render the imposition of attorney fees fundamental error
when a defendant clearly cannot afford such fees. But the basis for finding fundamental
error in Torres-Soto was the imposition of $85,500 in surcharges pursuant to A.R.S. §§ 12-
116.01 and 12-116.02, despite information in the presentence report suggesting the
defendant was a “pauper.” 187 Ariz. at 145-46, 927 P.2d at 805-06. The court essentially
concluded that the trial court had abused its discretion in imposing the surcharges and that
the abuse was so egregious that it rose to the level of fundamental error. See id. The court
in Torres-Soto specifically noted, however, that in the absence of fundamental error
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involving the $85,500 in surcharges, the court would not have addressed any alleged error
with respect to the “unobjected-to imposition of [a $375] attorneys’ fee[],” despite the lack
of findings below. Id. at 145, 927 P.2d at 805, citing Trantor v. Fredrikson, 179 Ariz. 299,
300, 878 P.2d 657, 658 (1994) (errors in imposing attorney fees not raised at trial waived
on appeal). Here, Moreno-Medrano did not object to the fees or the failure to make findings
and was assessed no more than $425. The “overriding considerations” present in Torres-
Soto are simply not present here. The trial court therefore did not commit fundamental error
in imposing the fees.
Criminal Restitution Order
¶16 Moreno-Medrano further argues the trial court erred in reducing the $400
attorney fee and $25 indigent administrative assessment ordered under A.R.S. § 11-584(B)
to a judgment and entering a criminal restitution order at sentencing. He contends that
A.R.S. § 13-805 only permits those fees to be reduced to a criminal restitution order at the
completion of a defendant’s sentence or term of probation and that the error alleged here
will result in immediate accrual of interest on his obligation under § 13-805(C). Because
Moreno-Medrano failed to object below, we again review solely for fundamental, prejudicial
error. See Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607. Moreno-Medrano bears
the burden of demonstrating that error occurred, that it was fundamental, and that it
prejudiced him. See id. ¶¶ 19-20, 23.
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¶17 Moreno-Medrano does not argue the alleged error was fundamental. See State
v. Ramsey, 211 Ariz. 529, n.6, 124 P.3d 756, 766 n.6 (App. 2005) (noting defendant’s
failure to argue fundamental error); State v. Cons, 208 Ariz. 409, ¶ 3, 94 P.3d 609, 611
(App. 2004) (same); see also Ariz. R. Crim. P. 31.13(c)(1)(vi). That argument is therefore
waived. See State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1989).
¶18 Additionally, we have held in a different context that fees ordered under § 11-
584(B) “are not punitive in nature or related to other court-imposed penalties.” State v.
Connolly, 216 Ariz. 132, ¶ 3, 163 P.3d 1082, 1082-83 (App. 2007); see also § 13-805(C)
(criminal restitution order continues in effect after sentence is served). Thus, even if
Moreno-Medrano is correct that the trial court erred, we cannot see how reducing non-
punitive fees the court was authorized to impose to a criminal restitution order could result
in an illegal sentence. See Ariz. R. Crim. P. 26.1(b) (defining sentence as “the
pronouncement by the court of the penalty imposed upon the defendant after a judgment
of guilty”) (emphasis added). Nor could it otherwise be construed as “‘error going to the
foundation of the case, error that takes from the defendant a right essential to his defense,
and error of such magnitude that the defendant could not possibly have received a fair
trial.’” Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d at 607, quoting State v. Hunter, 142
Ariz. 88, 90, 688 P.2d 980, 982 (1984). Accordingly, absent any argument or authority that
the alleged error here was fundamental, Moreno-Medrano cannot sustain his burden in a
fundamental error analysis.
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Insistence on Innocence at Sentencing
¶19 Moreno-Medrano last contends that, in sentencing him, the trial court
improperly adopted the prosecutor’s position that Moreno-Medrano’s insistence on his
innocence was a factor supporting a presumptive sentence. Because he failed to raise this
issue below, we review solely for fundamental error. See Henderson, 210 Ariz. 561, ¶ 19,
115 P.3d at 607; see also State v. Ruggiero, 211 Ariz. 262, n.6, 120 P.3d 690, 697 n.6
(App. 2005).
¶20 A defendant’s refusal “to publicly admit his guilt . . . is irrelevant to a
sentencing determination.” State v. Carriger, 143 Ariz. 142, 162, 692 P.2d 991, 1011
(1984). Because it is improper to do so, we presume the court did not consider Moreno-
Medrano’s insistence on his innocence unless the record indicates otherwise. See State v.
Phillips, 202 Ariz. 427, ¶ 51, 46 P.3d 1048, 1059 (2002) (presuming trial court considered
only proper evidence at sentencing).
¶21 At sentencing, the trial court stated:
Mr. Moreno-Medrano, I have considered your letter, as I said,
even though to the presentence report author you still maintain
your innocence. And you’re entitled to do so, but I have
considered the fact that you have indicated, if you will, a sense
of remorse with respect to the situation. And that was clearly
evident in your letter.
Although the court mentioned that Moreno-Medrano maintained his innocence and had the
right to do so, it did not state that it considered Moreno-Medrano’s insistence on his
innocence as a factor in sentencing him. Indeed, the statement suggests the court considered
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Moreno-Medrano’s remorse, not his insistence on his innocence. Nothing in the record
contradicts the presumption that the court considered only evidence properly related to the
sentencing decision. See Phillips, 202 Ariz. 427, ¶ 51, 46 P.3d at 1059. We therefore find
no error, fundamental or otherwise.
Conclusion
¶22 Based on the foregoing, Moreno-Medrano’s convictions and sentences are
affirmed.
____________________________________
JOSEPH W. HOWARD, Presiding Judge
CONCURRING:
____________________________________
JOHN PELANDER, Chief Judge
____________________________________
J. WILLIAM BRAMMER, JR., Judge
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