State v. Moreno-Medrano, 2 CA-CR 2007-0202.

CourtCourt of Appeals of Arizona
Writing for the CourtHoward
Citation218 Ariz. 349,185 P.3d 135
PartiesThe STATE of Arizona, Appellee, v. Luis Alberto MORENO-MEDRANO, Appellant.
Docket NumberNo. 2 CA-CR 2007-0202.,2 CA-CR 2007-0202.
Decision Date17 June 2008

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.


HOWARD, 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.


¶ 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, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We review the court's ruling for an abuse of discretion, 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, 99 S.Ct. 1755, 60 L.Ed.2d 286 (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, 99 S.Ct. 1755, 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.

¶ 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 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."

¶ 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.

¶ 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. A...

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