State v. Cabrera-Ortega

• Decision Date: 27 September 2022
• Docket Number: 1 CA-CR 21-0549
• Parties: STATE OF ARIZONA, Appellee, v. OSCAR CABRERA-ORTEGA, Appellant.
• Court: Arizona Court of Appeals

STATE OF ARIZONA, Appellee,
v.
OSCAR CABRERA-ORTEGA, Appellant.

No. 1 CA-CR 21-0549

Court of Appeals of Arizona, First Division

September 27, 2022

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County No. CR2020-001722-001 The Honorable Roy C. Whitehead, Judge

VACATED IN PART AND AFFIRMED IN PART

Arizona Attorney General's Office, Tucson By Diane L. Hunt Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix By Thomas K. Baird Counsel for Appellant

Judge Randall M. Howe delivered the decision of the court, in which Presiding Judge David D. Weinzweig and Judge D. Steven Williams joined.

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MEMORANDUM DECISION

HOWE, JUDGE

¶1 Oscar Cabrera-Ortega appeals the financial assessments in his sentencing order. For the following reasons, we vacate in part and affirm in part.

FACTS AND PROCEDURAL HISTORY

¶2 In May 2020, Cabrera-Ortega was indicted on three counts of sexual assault and three counts of kidnapping, class 2 felonies committed in July 2002 and in April and May 2006. Following a jury trial, the jury convicted Cabrera-Ortega on all six counts. On the three counts of sexual assault, he was sentenced to consecutive terms of imprisonment totaling 28 years. On the three counts of kidnapping, the trial court suspended the imposition of sentence and imposed concurrent five-year terms of supervised probation upon his release. The court ordered him to pay financial assessments for one count of the sexual assault convictions: a $20 time-payment fee, $20 probation assessment, $250 sex offender registration fee, $13 criminal penalty assessment, $50 address confidentiality program assessment, and $500 dangerous crimes against children ("DCAC") or sexual assault assessment. The court also ordered him to pay financial assessments for one probation count: a $65 monthly probation fee, $20 probation assessment, $20 time-payment fee, $13 criminal penalty assessment, and $2 victim rights enforcement assessment. Neither party objected to these amounts at sentencing. Cabrera-Ortega timely appeals.

DISCUSSION

¶3 Cabrera-Ortega argues that his sentence was illegal because the court ordered him to pay assessments in violation of ex post facto principles.^[1] Namely, he appeals from the criminal penalty assessment,

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address confidentiality program assessment, sex offender registration fee, DCAC or sexual assault assessment, and time-payment fee. Because Cabrera-Ortega did not object to this issue at sentencing, we review for fundamental, prejudicial error. State v. Escalante, 245 Ariz. 135, 140 ¶ 12 (2018); State v. McDonagh, 232 Ariz. 247, 248 ¶ 7 (App. 2013). But "[w]e review de novo issues concerning the meaning and scope of statutes, attempting to discern and fulfill legislative intent." State v. Payne, 223 Ariz. 555, 561 ¶ 16 (App. 2009).

¶4 The State properly concedes that the statutes authorizing the financial assessments in this appeal became effective after the dates of the offenses alleged in the indictment. See A.R.S. §§ 12-116.04, -116.05, -116.07; A.R.S. § 13-3821(Q). Ex post facto laws punish acts not punishable at the time they were committed or impose more punishment than prescribed at the time offenders committed the offense. State v. Weinbrenner, 164 Ariz. 592, 593 (App. 1990). The Arizona Constitution prohibits the enactment of such laws, Ariz. Const. art. II, § 25, "to secure substantial personal rights against arbitrary and oppressive legislation, and not to limit the legislative control of remedies and modes of procedure which do not affect matters of substance." Weinbrenner, 164 Ariz. at 593 (quoting Beazell v. Ohio, 269 U.S. 167, 171 (1925)). Newly enacted laws that change defendants' procedural rights are not ex post facto. State v. Beltran, 170 Ariz. 406, 408 (App. 1992). Procedural or regulatory laws may be applied retroactively, whereas punitive laws may not. State v. Henry, 224 Ariz. 164, 167 ¶ 8 (App. 2010). "[T]he person challenging a law on ex post facto grounds bears the burden of demonstrating by 'the clearest proof that the law is in fact punitive." State v. Haverstick, 234 Ariz. 161, 167 ¶ 11 (App. 2014) (internal quotation marks omitted); Henry, 224 Ariz. at 167 ¶ 9.

I. Criminal Penalty Assessments

¶5 The court erred in imposing the criminal penalty assessments. The State concedes that the $13 criminal penalty assessment constitutes a fine or penalty that violates ex post facto laws and should be vacated. Its concession was proper. Arizona Revised Statutes § 12-116.04 provides that "a penalty assessment shall be levied in an amount of thirteen dollars on every fine, penalty and forfeiture imposed and collected by the courts for criminal offenses . . . ." (emphasis added). "The term 'penalty' in its broadest sense includes fines as well as other kinds of punishment." State

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v. Sheaves, 155 Ariz. 538, 541 (App. 1987) (finding that a fine is a criminal penalty). Because a "criminal penalty" implicates punishment, the criminal penalty assessment is punitive in nature and thus violates ex post facto principles. See id. (finding that a "felony penalty assessment" is punitive because the assessment is "exacted from each individual defendant for each felony of which he or she is convicted"); Beltran, 170 Ariz. at 408 (holding that statute increasing surcharge of penalty assessment from 37% at the time the offense was committed to 40% was substantive in nature and imposed additional punishment). Because of the criminal penalty assessment's punitive nature, its imposition here violates ex post facto principles. We therefore vacate the imposition of this assessment for both the sexual abuse and kidnapping counts.

II. Address Confidentiality Program Assessment

¶6 The court did not err in imposing the address confidentiality program assessment. To characterize the assessment as regulatory or punitive, courts look first to the legislature's intent. State...