State v. Cota

• Citation: 234 Ariz. 180,319 P.3d 242,681 Ariz. Adv. Rep. 7
• Decision Date: 25 February 2014
• Docket Number: No. 2 CA–CR 2013–0185.,2 CA–CR 2013–0185.
• Parties: The STATE of Arizona, Appellee, v. Reuben Renee COTA, Appellant.
• Court: Court of Appeals of Arizona

234 Ariz. 180

319 P.3d 242

681 Ariz. Adv. Rep. 7

The STATE of Arizona, Appellee,

v.Reuben Renee COTA, Appellant.

No. 2 CA–CR 2013–0185.

Court of Appeals of Arizona,

Division 2.

Feb. 25, 2014.

Thomas C. Horne, Arizona Attorney General, Joseph T. Maziarz, Section Chief Counsel, Phoenix, By Kathryn A. Damstra, Assistant Attorney General, Tucson, Counsel for Appellee.

Nicole Farnum, Phoenix, Counsel for Appellant.

OPINION

ECKERSTROM, Judge.

¶ 1 Following a jury trial, appellant Reuben Cota was convicted of armed robbery, aggravated assault with a deadly weapon or dangerous instrument, and aggravated robbery. He was sentenced to concurrent prison terms, the longest of which was seven years, and the trial court entered a criminal restitution order. On appeal, he argues the court erred by holding an additional closing argument in his absence. Because Cota waived his presence at that argument, and because he has failed to show any resulting error or prejudice, we affirm his convictions and sentences. However, we vacate the criminal restitution order, in part, and publish this opinion to clarify the following limitation we left implicit in State v. Lopez, 231 Ariz. 561, 298 P.3d 909 (App.2013): as to sentences imposed on or after April 1, 2013—the effective date of the 2012 amendments to A.R.S. § 13–805, 2012 Ariz. Sess. Laws, ch. 269, § 2—criminal restitution orders may be lawfully entered at sentencing for the unpaid balance of any court-ordered restitution, pursuant to the new § 13–805(B).

Right to Presence

¶ 2 During their deliberations, jurors submitted two questions to the trial court concerning the armed robbery charge and the court's instructions regarding intent and accomplices. The court determined these questions warranted further argument by counsel and informed the attorneys that they each would be given five minutes to clarify the issues. SeeAriz. R.Crim. P. 22.4 & cmt. (permitting further proceedings to assist jurors at impasse, including “additional closing argument”). The following exchange then occurred regarding Cota's presence at the argument:

[DEFENSE COUNSEL]: And if we are going to argue in front of the jury my client is on call.

THE COURT: Call him. Get him over here now while we're making copies.

...

(Bailiff leaves to make copies.)

(Defense counsel makes a call.)

THE COURT: If you want I can tell them he's clearly on his way, that we're in contact with him, but we didn't want to delay them any further so that they don't think he's not here.

It's up to you.

[DEFENSE COUNSEL]: I can do that.

Before the argument began, the court consequently informed the jury, “Please understand that Mr. Cota, we are in total contact with him, it was just going to take him an additional ten minutes to get here to the courthouse. So with his permission and [defense counsel]'s permission I'm going to handle the questions with him not present.”

¶ 3 Citing this portion of the transcript, the state asserts in its answering brief that Cota either waived his presence through counsel or invited the error of which he now complains. Cota appears to concede as much in his opening brief, and his failure to file a reply provides an adequate basis to affirm. See State v. Morgan, 204 Ariz. 166, ¶ 9, 61 P.3d 460, 463 (App.2002) (recognizing failure to file reply brief on issue presented in answering brief as sufficient basis for rejecting appellant's position); Ariz. Dep't of Pub. Safety v. Indus. Comm'n, 170 Ariz. 275, 277, 823 P.2d 1283, 1285 (App.1991) (“A failure to reply to arguments raised in an answering brief may justify a summary disposition of an appeal.”).

¶ 4 In any event, we would find no basis for relief on the merits of Cota's claim. The lack of an objection to proceeding in his absence results in fundamental-error review of this issue on appeal. See State v. Dann, 205 Ariz. 557, ¶¶ 55, 71, 74 P.3d 231, 246, 249 (2003). Under this standard, a defendant bears the burden of showing that an error occurred, that the error was fundamental, and that it resulted in prejudice. State v. Maldonado, 223 Ariz. 309, ¶ 25, 223 P.3d 653, 657 (2010).¹ Contrary to Cota's assertion, a defendant's personal waiver is not required in order to proceed in his absence. E.g., State v. Swoopes, 216 Ariz. 390, ¶¶ 29–32, 35, 166 P.3d 945, 954–56 (App.2007) (concluding defendant not personally required to waive presence during trial court's answer to jury question); State v. Campbell, 146 Ariz. 415, 418, 706 P.2d 741, 744 (App.1985) (finding no error when counsel waived defendant's presence without defendant objecting). We thus find no error, fundamental or otherwise, in the proceedings here. See State v. Diaz, 223 Ariz. 358, ¶ 11, 224 P.3d 174, 176 (2010) (noting defendant “must first establish that some error occurred” under any review standard). Nor has Cota demonstrated any prejudice resulting from his absence, as the trial court's explanation suggested to jurors that he had acted merely out of courtesy for their time.

Criminal Restitution Order

¶ 5 The state has independently raised an issue concerning Cota's criminal restitution order (CRO). At sentencing, the trial court ordered Cota to pay $400 in attorney fees, a $20 time payment fee, a $25 indigent administrative assessment fee, and $1,212.33 in victim restitution. The court then reduced all “fees, assessments and/or restitution” to a CRO, specifying that “no interest, penalties, or collection fees” would accrue during the defendant's incarceration.²

¶ 6 Relying on this court's decision in Lopez, 231 Ariz. 561, ¶ 2, 298 P.3d at 910, the state alerted us that the entry of the CRO was premature and unauthorized, amounting to fundamental, prejudicial error adverse to the defendant.³ The state therefore requested that the CRO be vacated. Although the CRO is indeed flawed in several respects, the state originally overlooked that Lopez involved only “fines, fees, and assessments,” id. ¶ 1, and its holding does not necessarily apply to the restitution portion of a CRO. Since this court ordered supplemental briefing on the issue, the state has refined its position and now requests that we affirm the CRO as to the victim's restitution, but vacate the remainder of the order. We agree with the state's analysis.

¶ 7 Construing and applying § 13–805 in this case presents questions of law, which we analyze de novo. See State v. Pinto, 179 Ariz. 593, 595, 880 P.2d 1139, 1141 (App.1994). When interpreting a statute, our task “is to ascertain and give effect to the legislature's intent.” State v. Zaputil, 220 Ariz. 425, ¶ 9, 207 P.3d 678, 681 (App.2008). To do so, we look first to the language of the statute. Id. If there is uncertainty about its meaning, we attempt to discern legislative intent by considering the statute's context, language, subject matter and historical background, effects and consequences, and spirit and purpose. Haag v. Steinle, 227 Ariz. 212, ¶ 9, 255 P.3d 1016, 1018 (App.2011).

Restitution

¶ 8 We previously intimated that the 2012 amendments to § 13–805 permit a court to enter a CRO at sentencing in certain circumstances. State v. Torres, 233 Ariz. 479, n. 2, 314 P.3d 825, 828 n. 2 (App.2013). This case represents just such a circumstance. The trial court sentenced Cota in April 2013 and ordered him to pay the victim over $1,000 in restitution for medical expenses the victim had incurred from being stabbed. Section 13–805(B) therefore applies, and it provides as follows:

At the time the defendant is ordered to pay restitution by the superior court, the court may enter a criminal restitution order in favor of each person who is entitled to restitution for the unpaid balance of any restitution order. A criminal restitution order does not affect any other monetary obligation imposed on the defendant pursuant to law.

Because § 13–805 no longer categorically prohibits the entry of a CRO at sentencing, our decision in State v. Lewandowski, 220 Ariz. 531, ¶¶ 8–10, 15, 207 P.3d 784, 787–88, 789 (App.2009), the foundation of Lopez, has been partly superseded by this statutory change.

¶ 9 Although Cota committed his offenses on June 5, 2011—before the amendments to § 13–805 had been passed or had taken effect—the new subsection (B) nevertheless applies to him because it is a non-punitive, procedural provision that was in effect when he was sentenced.⁴ A purely procedural change in the law applies to pending criminal cases because a defendant has “no vested right to a particular mode of procedure.” State v. Leonard, 151 Ariz. 1, 4, 725 P.2d 493, 496 (App.1986). Procedural law “ ‘prescribes the method of enforcing a right or obtaining redress for the invasion of that right,’ ” whereas substantive law “ ‘creates, defines and regulates rights.’ ” State v. Weinbrenner, 164 Ariz. 592, 593, 795 P.2d 235, 236 (App.1990), quoting State v. Fletcher, 149 Ariz. 187, 191, 717 P.2d 866, 870 (1986) (emphasis omitted). “Statutory changes are procedural if they have neither made criminal a previously innocent act nor aggravated a crime previously committed nor provided greater punishment nor changed proof necessary to convict.” State v. Beltran, 170 Ariz. 406, 408, 825 P.2d 27, 29 (App.1992).

¶ 10 An examination of the legislative intent and effects of § 13–805(B) confirms its procedural character. See State v. Henry, 224 Ariz. 164, ¶ 9, 228 P.3d 900, 903 (App. 2010). The primary purpose of this provision is to provide crime victims a mechanism for collecting the “prompt restitution” they are entitled to receive under article II, § 2.1(A)(8) of the Arizona Constitution, also known as the Victims' Bill of Rights (VBR). See State v. Unkefer, 225 Ariz. 430, ¶ 24, 239 P.3d 749, 755 (App.2010) (observing § 13–805 enacted “to assist victims in obtaining prompt restitution”) (emphasis omitted), disapproved in part on other grounds by Hoffman v. Chandler, 231 Ariz. 362, ¶ 14, 295 P.3d 939, 942 (2013); Pinto, 179 Ariz. at 596, 880 P.2d at 1142 (same); see alsoA.R.S. § 13–804(E) (requiring court to...