State v. Phalen

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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. ) ) KRISTINA KAYE PHALEN, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 05-25-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CR 09-0084 DEPARTMENT A MEMORANDUM DECISION (Not for PublicationRule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2001-013558 The Honorable Sally Schneider Duncan, Judge AFFIRMED Terry Goddard, Attorney General Phoenix By Kent E. Cattani, Chief Counsel Criminal Appeals Section/Capital Litigation Section And Sherri Tolar Rollison, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Tennie B. Martin, Deputy Public Defender Attorneys for Appellant Phoenix O R O Z C O, Judge ¶1 Kristina Kaye Phalen (Defendant) was convicted of one count of forgery, a class four felony; one count of possession or use of dangerous drugs, a class four felony; and one count of possession of drug paraphernalia, a class six felony. She was sentenced to presumptive terms on all counts and the sentences were ordered to run concurrently. In addition, the trial court stated: I am ordering a $1,000 fine. I m waiving any surcharge on that fine based on the length of your prison sentence. I m ordering that you participate in an inmate financial responsibility program and that you start making payments while you are in custody. You ll receive credit towards any payments that you make. Again, I m not going to have that reduced to judgment until you are released from custody so that you don t accrue interest unnecessarily. ¶2 have Defendant filed a timely notice of delayed appeal. jurisdiction Arizona pursuant Constitution and to Article Arizona 6, Revised Section 9, Statutes of We the (A.R.S.) sections 12-120.21.A.1 (2003), 13-4031 and -4033.A (2010).1 DISCUSSION ¶3 Defendant raises one issue on appeal: whether the trial court erred in ordering that she begin payment of the $1000 fine while imprisoned.2 Because Defendant did not object to this 1 We cite to the current version of the applicable statutes because no revisions material to this decision have since occurred. 2 To the extent Defendant argues the fine should not be deducted from her prison earnings, this issue is not properly before us. This Court only has jurisdiction to consider the trial court s order from which Defendant appeals. A.R.S. §§ 12120.21.A.1, 13-4031, -4033.A. Because the trial court did not order mandatory deductions from Defendant s prison earnings, we 2 issue in the trial court, our review is limited to fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). the burden of Under this standard of review, Defendant has proving that there was error, the error was fundamental and that the error caused her prejudice as a result. Id. at ¶ 20. ¶4 Defendant contends that there is no statutory authority, specifically in A.R.S. § 31-254 (Supp. 2009), that allows the court to order that any potential prison earnings by [Defendant] be applied to the payment of a fine. Defendant asks this court to vacate the trial court s order with respect to the payment of the fine while [Defendant] is imprisoned. Because we find no error, we decline to do so. Court s authority to enter a judgment with fines ¶5 Section 31-254 addresses, among other things, the distribution of prisoner earnings and mandatory deductions from prisoner pay. The State correctly points out that A.R.S. § 31- 254 is inapplicable to Defendant s sentence because the court did not order any mandatory deductions while she was incarcerated. from Defendant s earnings Instead, the court ordered Defendant start making payments while [she was] in custody. do not have jurisdiction to address how, if at all, the fine is being paid from Defendant s prison earnings. 3 ¶6 [A]t the time of sentencing, a trial court has the authority to enter judgment for the total amount a defendant will be required restitution. to pay, The including court may also fines, order fees, a costs, defendant to payments during the term of incarceration or probation. and make State v. Lewandowski, 220 Ariz. 531, 534, ¶ 7, 207 P.3d 784, 787 (App. 2009) (emphasis (2010). added); see generally A.R.S. §§ 13-801, -808 The court may grant permission for payment to be made within a specified period of time or in specified installments. A.R.S. § 13-808.A. If no such permission is set forth in the sentence, the fine shall be payable immediately. ¶7 In this case, Defendant s $1000 fine mandatory deduction pursuant to A.R.S. § 31-254. trial court did not order the fine s Id. payment was not a Because the directly from Defendant s prison earnings, whether A.R.S. § 31-254 contains fines is irrelevant. The trial court was authorized to order Defendant begin paying the imposed fine while she was in custody. See Lewandowski, 220 Ariz. at 534, ¶ 7, 207 P.3d at 787. No prejudice ¶8 Even if we were to assume that the trial court erred in its order requiring Defendant to pay the fine while she was incarcerated, she has not shown how she is prejudiced by the error. See Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607. We have previously held that a criminal restitution order may not 4 be entered prior to the expiration of a defendant s sentence because the early entry of the order constitutes an illegal sentence due to the mandatory imposition of interest under A.R.S. § 13-805.C (2010). Lewandowski, 220 Ariz. at 535, 536, ¶¶ 10, 15, 207 P.3d at 788, 789. ¶9 pay In this case, the trial court did not order Defendant a restitution order; instead, Defendant to pay a $1000 fine. the trial court ordered The court waived all surcharges relating to the fine. Additionally, the payment was not to be reduced judgment until Therefore, the custody. to unnecessarily. [Defendant fine did was] not released accrue from interest Unlike Lewandowski, Defendant is not required to pay any additional monies because of the court s order. Ariz. at 535, ¶ 10, 207 P.3d at 788. 220 Defendant still owes $1000 while in prison; there is no additional accrual of interest. Defendant has not established that she is unable to comply with the court s order and pay the fine while incarcerated. ¶10 Accordingly, Defendant has not met her burden of establishing that she was prejudiced by the trial court s order requiring her to pay a $1000 fine. 5 CONCLUSION ¶11 For the above mentioned reasons, we affirm Defendant s convictions and sentences, including the $1000 fine. /S/ ___________________________________ PATRICIA A. OROZCO, Presiding Judge CONCURRING: /S/ ____________________________________ DANIEL A. BARKER, Judge /S/ ____________________________________ LAWRENCE F. WINTHROP, Judge 6

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