Opinion
No. 1 CA-CR 18-0147 No. 1 CA-CR 18-0255 (Consolidated)
02-28-2019
STATE OF ARIZONA, Appellant/Cross-Appellee, v. JACOB AARON SORENSEN, Appellee/Cross-Appellant.
COUNSEL Maricopa County Attorney's Office, Phoenix By Jeffrey R. Duvendack Counsel for Appellant/Cross-Appellee Maricopa County Legal Defender's Office, Phoenix By Cynthia D. Beck Counsel for Appellee/Cross-Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR2007-136308-001
No. CR2006-156330-001
The Honorable Jose S. Padilla, Judge
AFFIRMED IN PART; REVERSED IN PART
COUNSEL Maricopa County Attorney's Office, Phoenix
By Jeffrey R. Duvendack
Counsel for Appellant/Cross-Appellee Maricopa County Legal Defender's Office, Phoenix
By Cynthia D. Beck
Counsel for Appellee/Cross-Appellant
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge Jon W. Thompson and Judge Kent E. Cattani joined. SWANN, Judge:
¶1 In this consolidated appeal, the state challenges the superior court's orders reducing Jacob Aaron Sorensen's obligations to pay fees and surcharges as set forth in two 2011 criminal restitution orders, stemming from a 2006 case (CR2006-156330-001), and a 2007 case (CR2007-136308-001). The state also challenges the court's order granting Sorensen's request to waive interest accruing on the fine imposed in the 2007 case. Sorensen cross-appeals from the order in the 2007 case denying his similar request to waive interest accruing in that case. For reasons that follow, we reverse the orders in the 2006 and 2007 cases waiving fees and probation surcharges, as well as the order in the 2007 case waiving interest. We affirm the order in the 2006 case declining to waive interest.
FACTS AND PROCEDURAL HISTORY
¶2 In April 2008, Sorensen pleaded guilty to two charges of possession of drug paraphernalia, one stemming from a 2006 incident and the other from 2007. The superior court suspended sentence and imposed concurrent 18-month probation terms. In his plea agreements, Sorensen agreed to pay, for each conviction, a $750 fine plus an 80% surcharge for a total amount of $1,350. The court then imposed fees and a probation surcharge in both cases.
¶3 Sorensen failed to comply with the conditions of his probation, and the superior court issued bench warrants for his arrest. When Sorensen appeared for his consolidated violation hearing, the court reinstated 18-month probation terms and added a warrant charge in both cases. The court ultimately discharged Sorensen from probation in 2011 at the request of his probation officer because the officer could not locate him for over two years.
¶4 In May 2011, the superior court issued a criminal restitution order ("CRO") in both cases. The total unpaid balance of the fines, surcharges, and fees was $1,575 in the 2006 case, and $1,425 in the 2007 case.
Sorensen does not contest the court's calculation of the unpaid balances.
¶5 In February 2018, Sorensen, claiming an inability to pay, filed pro per requests to waive "some of the fine[s]" and the accruing interest on the unpaid balances of $3,266.46 in the 2006 case, and $2,443.94 in the 2007 case. The state objected, arguing the court did not have the authority to modify the CROs in the manner Sorensen requested.
¶6 The court addressed the 2007 matter first and, over the state's objection, set aside the balances of the fees and probation surcharge. The court also waived "any past and future interest incurred" so long as Sorensen was making timely monthly payments of $35. The state appealed.
¶7 The following month, the court held a hearing on Sorensen's request regarding his financial obligation in the 2006 case, and again waived the fees and probation surcharge; however, unlike in the 2007 case, the court declined to waive interest. The state appealed, and Sorensen cross-appealed.
¶8 This court consolidated the cases for appeal.
DISCUSSION
¶9 The state argues that the superior court lacked authority under A.R.S. §§ 13-805 and -810 to reduce the total unpaid amounts in the CROs by waiving the unpaid fees, surcharge, and, in the 2007 case, accruing interest. Sorensen, on the other hand, contends that the court did have the authority to make such reductions to the CROs under Ariz. R. Civ. P. 60.
¶10 A requirement to compensate the state for unpaid fines, fees, or surcharges—just as a requirement to compensate a crime victim for economic loss—may be considered "restitution" under Arizona law. See A.R.S. §§ 13-804(K) and -805(C), (I); see also State v. Lewandowski, 220 Ariz. 531, 534, ¶ 8 (App. 2009) (interpreting § 13-805(C) to "require[ ] the trial court to enter a CRO for the unpaid balances of any monies owed to the state or to individuals as restitution"), superseded by statute on other grounds as stated in State v. Cota, 234 Ariz. 180, 183, ¶ 8 (App. 2014); State v. Pinto, 179 Ariz. 593, 595 (App. 1994) (classifying requirement to pay the state for fines, fees, and surcharges, as "restitution"). We therefore treat Sorensen's unpaid fines, fees, and surcharges as restitution.
¶11 We review the superior court's orders de novo. Pinto, 179 Ariz. at 595. "The issue regarding repayment of restitution presents a pure question of law requiring us to apply basic tenets of statutory construction." Id. When construing a statute, our primary goal is to give effect to language written by the legislature. State v. Christian, 205 Ariz. 64, 66, ¶ 6 (2004). If the statutory language is unambiguous, we must give effect to its plain meaning unless doing so would render an absurd result. Id.; Valerie M. v. Ariz. Dep't of Econ. Sec., 219 Ariz. 155, 158, 161, ¶¶ 11, 19 (App. 2008).
¶12 Section 13-805 provides, in relevant part:
A. The trial court shall retain jurisdiction of the case as follows:
1. [F]or purposes of ordering, modifying and enforcing the manner in which court-ordered payments are made until paid in full or until the defendant's sentence expires.
. . .
B. At the time the defendant is ordered to pay restitution by the 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.
C. At the time the defendant completes the defendant's period of probation or the defendant's sentence or the defendant absconds from probation or the defendant's sentence, the court shall enter . . . :
1. A criminal restitution order in favor of the state for the unpaid balance, if any, of any fines, costs, incarceration costs, fees, surcharges or assessments imposed.
. . .
E. A criminal restitution order may be recorded and is enforceable as any civil judgment, except that a criminal restitution order does not require renewal pursuant to § 12-
1611 or 12-1612. Enforcement of a criminal restitution order by any person who is entitled to restitution or by the state includes the collection of interest that accrues at a rate of ten per annum. A criminal restitution order does not expire until paid in full.If a defendant is unable to make court-ordered payments pursuant to a CRO, A.R.S. § 13-810(F) provides that:
If the court finds that the default is not wilful and that the defendant cannot pay despite sufficient good faith efforts to obtain the monies, the court may take any lawful action including:
1. Modify the manner in which the restitution, fine, surcharge, fee, assessment or incarceration costs are to be paid.
2. Enter any reasonable order that would assure compliance with the order to pay.
3. Enter an order pursuant to § 13-812.
¶13 Read together, the plain language of §§ 13-805 and -810 reflects a legislative intent to limit a court's authority to modifying the "manner" by which a defendant satisfies his total financial obligation, entering orders to otherwise assure the defendant's compliance with the CRO, or ordering garnishment under § 13-812. And although the legislature has permitted CROs to be enforceable by the means available for enforcement of civil judgments, such a grant of authority does not mean CROs become civil judgments under the civil rules. See Ariz. R. Civ. P. 60 (outlining broad judicial authority to grant a party relief from a civil judgment). Had the Legislature intended such a result, it would have said so expressly. See Hart v. Hart, 220 Ariz. 183, 187, ¶ 17 (App. 2009) ("[S]tandard principles of statutory construction require that we do not judicially impose a requirement the legislature has intentionally chosen not to require.").
Sorensen argues the superior court's orders waiving fees and a surcharge amount to reasonable orders under § 13-810(F)(2) that assure his compliance with the CROs. But this argument is internally inconsistent. By reducing Sorensen's total financial obligations, adherence to the modification orders will necessarily result in Sorensen's non-compliance with the 2011 CROs.
¶14 Additionally, to construe the provisions as authorizing the superior court to modify the amount owed under a CRO would improperly encroach upon the legislative function of determining the superior court's jurisdiction. See Andrews v. Andrews, 126 Ariz. 55, 58 (App. 1980) ("[A] trial court has only such jurisdiction as is given to it by statute."). We therefore conclude the legislature intended trial courts to retain jurisdiction over a CRO until a defendant fully satisfies his or her financial obligations as set forth in the order. Accordingly, the superior court erred by waiving the fees and surcharges in the 2006 and 2007 cases.
¶15 Regarding the superior court's waiver of interest in the 2007 case, we have previously determined that nothing in § 13-805 permits a court to delay or alter the accrual of interest on a CRO. See Cota, 234 Ariz. at 185, ¶ 18; State v. Lopez, 231 Ariz. 561, 562, ¶ 5 (App. 2013). Accordingly, the court erred in waiving "any past and future interest" accruing on the CRO in the 2007 case.
¶16 On cross-appeal, Sorensen contends that the superior court's order declining to waive interest in the 2006 case should be vacated because the order is inconsistent with the court's waiver of interest in the 2007 case. But based on our disposition of the appeal, the court's orders regarding interest are no longer inconsistent. For this reason, and those explained above, we affirm the court's decision not to waive interest in the 2006 case.
CONCLUSION
¶17 In CR2007-136308-001, we reverse the superior court's orders waiving fees, a surcharge, and interest on the fine. In CR2006-156330-001, we reverse the court's orders waiving fees and a surcharge, but we affirm the court's order declining to waive interest.