Opinion
2 CA-CR 2012-0012
08-14-2012
THE STATE OF ARIZONA, Appellee, v. DAVID O. SOTO, Appellant.
Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Joseph T. Maziarz, and Diane Leigh Hunt Tucson Attorneys for Appellee Joel Larson, Cochise County Legal Defender By Bethany Graham Bisbee Attorneys for Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
Not for Publication Rule 111, Rules of the Supreme Court
APPEAL FROM THE SUPERIOR COURT OF COCHISE COUNTY
Cause No. CR94000386
Honorable Wallace R. Hoggatt, Judge
AFFIRMED IN PART; VACATED IN PART
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Joseph T. Maziarz, and
Diane Leigh Hunt
Tucson
Attorneys for Appellee
Joel Larson, Cochise County Legal Defender
By Bethany Graham
Bisbee
Attorneys for Appellant
HOWARD, Chief Judge. ¶1 Appellant David Soto was convicted after a 1996 jury trial held in his absence of two counts of molestation of a child under the age of fifteen stemming from incidents occurring in 1994. Soto was arrested in 2011 and the trial court subsequently sentenced him to consecutive, seventeen-year prison terms. As part of that sentence, the court also imposed an assessment of $25.00 "pursuant to A.R.S. § 13-812." Soto argues on appeal, and the state agrees, that the court erred in imposing the assessment because the statute permitting the assessment had been repealed before he committed the offenses. ¶2 Because Soto did not raise this argument below, despite the opportunity to do so, he has forfeited relief for all but fundamental, prejudicial error. See State v. Lewandowski, 220 Ariz. 531, ¶ 4, 207 P.3d 784, 786 (App. 2009); see also State v. Vermuele, 226 Ariz. 399, ¶¶ 9, 14, 249 P.3d 1099, 1102, 1103 (App. 2011) (declining to apply fundamental error standard when defendant "had no clear procedural opportunity to challenge the rendition of sentence before it became final"). But the imposition of a sentence, including a penalty assessment, without statutory authority is fundamental, prejudicial error. See Lewandowski, 220 Ariz. 531, ¶¶ 4, 15, 207 P.3d at 786, 789; State v. Cox, 201 Ariz. 464, ¶ 13, 37 P.3d 437, 441 (App. 2002). Section 13-812 formerly provided for the direct collection of a monetary penalty from a convicted defendant for the victim compensation fund. 1992 Ariz. Sess. Laws, ch. 209, § 2. But that statute was repealed "from and after December 31, 1993," before Soto committed the instant offenses. 1993 Ariz. Sess. Laws, ch. 243, § 18. Thus, the court lacked authority to impose the assessment pursuant to that statute. See A.R.S. § 1-246 ("[An] offender shall be punished under the law in force when the offense was committed."); State v. Fell, 209 Ariz. 77, ¶ 10, 97 P.3d 902, 905 (App. 2004) ("[A] criminal defendant must be punished with the penalty that existed at the time the offense was committed."). ¶3 Nor did the statutory scheme in place at the relevant time permit the trial court to enter a direct assessment for the victim compensation fund; it instead directed to the fund surcharges imposed on other penalties. 1993 Ariz. Sess. Laws, ch. 243, §§ 3, 12; see also A.R.S. §§ 12-116.01, 41-2407. As the state points out, the court did not impose any additional monetary penalties. Thus, the court had no authority to impose the assessment at sentencing. ¶4 The $25.00 assessment imposed by the trial court is vacated. Soto's convictions and sentences otherwise are affirmed.
Soto's brief contains approximately ten pages of facts which are irrelevant to the issue raised on appeal. Although the court appreciates appellant's counsel's thoroughness, the statement of facts should be "relevant to the issues presented for review." Ariz. R. Crim. P. Rule 31.13(c)(1)(iv).
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JOSEPH W. HOWARD, Chief Judge
CONCURRING: _________________
PETER J. ECKERSTROM, Presiding Judge
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J. WILLIAM BRAMMER, JR., Judge