State v. Fogerty

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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 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) ) ) ) ) ) ) ) ) Appellee, v. CARRIE ANNE FOGARTY, Appellant. DIVISION ONE FILED: 12/22/09 PHILIP G. URRY,CLERK BY: DN No. 1 CA-CR 09-0334 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. LC2006-000739-001 DT The Honorable Eartha K. Washington, Judge Pro Tempore AFFIRMED Lynn Arouh, Gilbert Town Prosecutor By Courtney E. Barclay, Assistant Town Prosecutor Attorneys for Appellee Gilbert Pajerski Law P.C. By Chad Pajerski and Law Offices of Neal W. Bassett By Neal W. Bassett Attorneys for Appellant Phoenix B R O W N, Judge Phoenix ¶1 Carrie Anne Fogarty appeals her conviction and sentence on one count of extreme Driving under the Influence ( extreme DUI ), with one prior conviction. She argues that (1) the municipal court lacked jurisdiction over the offense because the minimum fine exceeded the court s jurisdictional limits, and Arizona Revised Statutes ( A.R.S. ) section 13-808(C) (2001), which provides otherwise, is unconstitutional; (2) the statutes imposing the financial sanctions for extreme DUI violate due process because they fail to provide adequate notice and are unconstitutionally vague; and (3) the higher jail fee at resentencing after appeal violated her rights to appeal, due process, and protection against an ex post facto law. For the reasons that follow, we find no constitutional infirmity and affirm. BACKGROUND ¶2 In March 2006, in the Gilbert Municipal Court, a jury found Fogarty guilty, inter alia, of extreme DUI, a class 1 misdemeanor, in violation of A.R.S. § 28-1382(A) (2004). A.R.S. § 28-1382(J). See The judge sentenced Fogarty for a second- offense extreme DUI after her counsel stipulated to a prior conviction, and ordered her to pay jail costs in the amount of $3,441. admission Fogarty successfully challenged the validity of the of the prior conviction in a petition for post- conviction relief, and the case was set for trial on the prior 2 conviction. Before the trial began, Fogarty filed a motion to dismiss the allegation of the prior conviction. the court lacked jurisdiction over the She argued that offense because the minimum fine exceeded the court s jurisdictional limits. She also argued that A.R.S. § 13-808(C) was unconstitutional. The judge denied conviction, ordered the and Fogarty surcharge, an construction motion, found sentenced to pay a extreme DUI assessment of the Fogarty fine of the abatement $930, fee and an which of prior The accordingly. of $1,250, existence judge included $250, a assessment a prison to the general fund of $1,250, all as required by A.R.S. § 28-1382. The judge also imposed $4,452 in jail costs, which reflected the increased cost for jail at the time of this sentencing. ¶3 Fogarty appealed to the superior court, arguing that: (1) the municipal court had no jurisdiction over the offense of extreme DUI; (2) A.R.S. § 13-808(C) was unconstitutional; and (3) the sentencing judge s imposition of increased jail costs illegally penalized Fogarty s exercise of her right to appeal, violated due process, and also violated her right not to be subjected to ex post facto laws. affirmed. The court found no error and Fogarty filed a timely notice of appeal. 1 1 We have We note, however, that nothing in the record indicates that Fogarty has complied with A.R.S. § 12-1841 (Supp. 2008) ( In any proceeding in which a state statute, ordinance, franchise or rule is alleged to be unconstitutional, the attorney general and 3 jurisdiction jurisdiction, pursuant however, to A.R.S. is limited validity of the statutes at issue. § 22-375(A) to (2002). determining the Our facial See id.; State v. Russo, 219 Ariz. 223, 225, ¶ 4, 196 P.3d 826, 828 (App. 2008) (citation omitted). DISCUSSION I. ¶4 Municipal Court s Jurisdiction Fogarty argues that the municipal court had no jurisdiction to try her for extreme DUI, because the minimum mandatory imposed fine, pursuant surcharge, abatement to § A.R.S. fee, 28-1382(F) and (2005) assessments exceed the maximum $2,500 in fines that may be imposed for a misdemeanor under A.R.S. § 13-802(A) (2001), and accordingly, exceed the municipal court s jurisdiction (2002) and 22-402(B) (2002). 13-808(C), which provides under A.R.S. §§ 22-301(A)(1) Fogarty also argues that A.R.S. § that the amount of surcharges and assessments are not limited by the maximum fine that may be imposed pursuant to section A.R.S. § 13-802, is unconstitutional and violates a variety of constitutional rights, including her right pursuant to A.R.S. § 21-102(B) (2002) to an eight-person the speaker of the house of representatives and the president of the senate shall be served with a copy of the pleading, motion or document containing the allegation at the same time the other parties in the action are served and shall be entitled to be heard. ). Because we reject Fogarty s constitutional challenge, we need not address the consequences of her failure to comply with the mandatory notice requirements. 4 jury because the penalty is a felony penalty and the right to due process because it purports to permit the government to impose fines higher than permitted by law. ¶5 We recently rejected a similar jurisdictional challenge on an appeal from a special action brought in superior court, and for the reasons outlined in that opinion, we also reject Fogarty s challenge. the Arizona Constitution, We reasoned in that case that under the legislature has the power to create and determine the jurisdiction of courts inferior to the superior court, including municipal courts. Rogers v. Cota, ___ Ariz. Adv. Rep. ___, ___, ¶ 5, 2009 WL 3460313, *1 (citation omitted). We further reasoned that in defining the inferior courts jurisdiction, the legislature provided under A.R.S. § 22-301(A)(1) assessments (2008) shall that not be any penalty considered part or of other the added fine for purposes of determining jurisdiction, and in A.R.S. § 13-808(C) that [t]he amount of restitution, assessments, incarceration costs and surcharges is not limited by the maximum fine that may be imposed under . . . [§] 13-802. Rogers, ___ Ariz. Adv. Rep. at ___, ¶ 8, 2009 WL 3460313, *2. follows: the Accordingly, we held as Because it is the legislature s prerogative to set jurisdictional limits of inferior courts, and the legislature has unambiguously decreed that the assessments in A.R.S. § 28-1382 do not count toward the $2,500 maximum fine 5 imposable for class [1] misdemeanors, the municipal court has jurisdiction over [defendant s] case. Rep. ___, ¶ 11, 2009 WL 3460313, *3. Rogers, ___ Ariz. Adv. Accordingly, we hold that the municipal court in this case had jurisdiction to try Fogarty for extreme DUI. ¶6 her See id. Fogarty s argument that A.R.S. § 13-808(C) violates constitutional inapplicable case rights law fails, and the because faulty it relies premise on that the legislature has no authority to exclude surcharges and other assessments from the $2,500 limit on fines for misdemeanors. presume that the statute is constitutional, and We Fogarty therefore bears the burden of persuading us to the contrary. See Russo, 219 Ariz. at 225, ¶ 4, 196 P.3d at 828 (citation omitted). Fogarty has failed to do so. She relies at the start on case law that has no bearing on the issue presented. The cases on which she relies interpret the meaning and impact of sanctions in the context of the analysis of whether the sanctions violated ex post facto laws, 2 the Illinois statutory scheme, 3 the constitutional right to counsel, 4 the prohibition 2 See People v. High, 15 Cal.Rptr.3d 148, 149-50 (App. 2004); State v. Beltran, 170 Ariz. 406, 407-08, 825 P.2d 27, 28-29 (App. 1992). 3 See People v. Jones, 861 N.E.2d 967, 975-80 (Ill. 2006). 4 See Irvin v. State, 203 So.2d 283, 290 (Ala. App. 1967). 6 against cruel against and double applicable here. unusual punishment, 5 and the prohibition frameworks that are simply punishment, 6 not Her only specific argument with respect to this statute s constitutionality is that it violates her right to an eight-person jury under A.R.S. § 21-102(B) and due process because it improperly allows the municipal court to impose a felony penalty and to impose fines higher than permitted by law. Because legislature had assessments from these no arguments authority the court, we reject them. to rely on a exclude jurisdictional limit finding of the surcharges the that and the municipal As outlined in Rogers, the legislature has the express power under the Arizona Constitution to set the limits of the municipal courts. 2009 WL 3460313, *1. Ariz. Adv. Rep. at ___, ¶ 5, The legislature has provided that the surcharges and assessments imposed for extreme DUI may not be included in the jurisdictional limit of the municipal courts, and that the offense is a class 1 misdemeanor. We decline to find the statute unconstitutional on this basis. ¶7 We also reject Fogarty s summary argument that A.R.S. § 13-808(C) violates Article III of the Arizona Constitution, the distribution of powers clause, 5 See Trop v. Dulles, 356 U.S. 86, 94-104 (1958). 6 because the legislature See generally, State v. Sheaves, 155 Ariz. 538, 747 P.2d 1237 (App. 1987). 7 enacted the statute in an attempt to avoid Beltran, the case which held that penalty. the Beltran, surcharge 170 Ariz. on a 406, fine 825 P.2d is a 27. criminal Beltran, however, did not address the jurisdictional issue that is the focus of A.R.S. § 13-808(C). Instead, it addressed an ex post facto claim arising from imposition of a surcharge amount that had been statutorily increased after the date of the offense, but before sentencing. See id. at 407, 825 P.2d at 28. We held in Beltran only that the surcharge was intended to be a criminal penalty for purposes of such analysis. at 29. See id. at 408, 825 P.2d It is not at all apparent that the legislature enacted A.R.S. § 13-803(C) to avoid Beltran. In any case, Fogarty has offered no authority for the more general proposition that the legislature cannot legitimately change statutory language to more precisely comport with its intention, in reaction to an adverse interpretation by the courts, absent a constitutional impediment. We decline to find any constitutional infirmity on this basis. II. ¶8 sanctions Unconstitutional Vagueness Fogarty imposed also for argues the that the offense fines of and extreme financial DUI are unconstitutionally vague, because A.R.S. § 13-802(A) providing a maximum fine of $2,500 for a first class misdemeanor fails to provide sufficient notice of the maximum financial penalty. 8 We disagree. It is well-established that a criminal statute is invalid if it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden. States v. Batchelder, omitted). So too, 442 vague U.S. 114, sentencing 123 (1979) provisions United (citations may pos[e] constitutional questions if they do not state with sufficient clarity the consequences of violating a given criminal statute. Id. (citations omitted). We find that the provisions of A.R.S. § 28-1382, outlining the sanctions for a second offense extreme DUI, however, abatement fee, clearly and two and unambiguously $1,250 impose assessments, cannot be considered unconstitutionally vague. ¶9 and a $250 DUI accordingly, See id. Fogarty argues that the statutory provisions imposing surcharges on the $500 fine, amounting in this case to $430, fail to provide adequate notice because they cannot be found in the traffic code, but rather are hidden in other provisions of the code. 7 She cites no authority for her argument that the legislature is constitutionally required to identify all potential surcharges on fines in the title governing the conduct of offense, and we know of none. We decline to find the statute unconstitutionally vague on this basis. 7 Specifically, Fogarty cites to A.R.S. §§ 12-116.01 and 116.02 (2003) (title governing courts and civil proceedings, sections governing assessments and penalty assessments), and 16954(C) (2006) (title governing elections and electors, section governing clean elections tax reduction). 9 III. ¶10 Post-Appeal Increase in Jail Costs Fogarty finally argues that the court s imposition of an increased fee for jail costs after she successfully appealed violated her constitutional rights to appeal, due process, and to protection against ex post facto laws. The authority for imposition of fees for jail costs is found in A.R.S. § 13804.01, which provides as follows: A. The court shall order a person who is convicted of a misdemeanor offense and who is sentenced to a term of incarceration to reimburse the political subdivision that is responsible for the costs of the person s incarceration for the incarceration costs. B. The court may determine the amount of incarceration costs to be paid based on the following factors: 1. The per diem per person cost of incarceration incurred by the political subdivision that incarcerates the person. 2. The person s ability to pay part or all of the incarceration costs. A.R.S. § 13-804.01 (Supp. 2008). Fogarty s challenge by its terms addresses the court s application of this statute, not its facial validity. challenge on We have no jurisdiction to consider such a this appeal. Our jurisdiction is limited determining the facial validity of the challenged statute. A.R.S. superior § 22-375(A) court s (limiting ruling on jurisdiction appeal from in appeal municipal court to See from to validity of a tax, impost, assessment, toll, municipal fine or 10 statute ); Russo, 219 Ariz. at 225, ¶ 4, 196 P.3d at 828 (recognizing this court s jurisdiction is limited to determining the facial validity of a statute). in this appeal to address We thus have no jurisdiction Fogarty s claim that the court s imposition of a higher fee for jail costs after her successful appeal, than had originally constitutional rights. been imposed, violated her See id. CONCLUSION ¶11 For the foregoing reasons, we affirm Fogarty s conviction and sentence. /s/ _________________________________ MICHAEL J. BROWN, Judge CONCURRING: /s/ ______________________________ PETER B. SWANN, Presiding Judge /s/ ______________________________ LAWRENCE F. WINTHROP, Judge 11

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