State v. Cooper

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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. 31.34 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) GREGORY NEAL COOPER, ) ) Appellant. ) ) DIVISION ONE FILED: 08/18/2011 RUTH A. WILLINGHAM, CLERK BY: DLL No. 1 CA-CR 10-0726 DEPARTMENT S MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2005-006707-002 DT The Honorable Frank A. Johnson, Jr., Judge Pro Tem, Retired AFFIRMED IN PART; VACATED IN PART Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Aaron J. Moskowitz, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Terry J. Reid, Deputy Public Defender Attorneys for Appellant Phoenix W I N T H R O P, Chief Judge ¶1 Gregory Neal Cooper appeals the trial court s order reinstating his probation and imposing other conditions, including requiring him to pay a bench warrant fee. Cooper argues that the court erred because no bench warrant was issued before his arrest, and he asks this court to vacate that portion of the order requiring that he pay the fee. The State confesses error, and we agree. ¶2 In April 2005, Cooper pled guilty to robbery, a class four felony. The trial court suspended sentencing and placed Cooper on three years probation, to commence upon his absolute discharge from prison for a separate offense. On January 9, 2009, Cooper received an absolute discharge from prison. In April 2010, Cooper admitted violating a term of his probation, and the court continued him on probation. ¶3 On July 15, 2010, Cooper admitted to his probation officer that he had stolen and used a prescription drug belonging to his mother, and the probation officer arrested him. The probation officer filed a petition to revoke Cooper s probation, and at the August 11, 2010 witness violation hearing, the court found that he had violated term 7 of his probation, possession of a prescription drug without a prescription. The court reinstated Cooper on probation and revised some of the conditions of his probation, including imposing a bench warrant fee in the amount of forty-five dollars. ¶4 Cooper filed a timely notice of appeal from the trial court s August 11, 2010 order. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona 2 Revised Statutes sections 12-120.21 (2003), 13-4031 (2010), and 13-4033(A) (2010). ¶5 In general, we review a sentence imposed by the trial court for an abuse of discretion. See State v. Cazares, 205 Ariz. 425, 427, ¶ 6, 72 P.3d 355, 357 (App. 2003). Because Cooper failed to object below to imposition of the bench warrant fee, however, we review for fundamental, prejudicial error. See State v. Payne, 223 Ariz. 555, 560, ¶ 13, 225 P.3d 1131, 1136 (App. 2009). by law, it If the bench warrant fee imposed was unauthorized amounts to an illegal fundamentally erred in imposing it. sentence and the court See id. at 560-61, ¶ 14, 225 P.3d at 1136-37. ¶6 A bench warrant fee may only be imposed on a defendant for whom a bench warrant has been ordered for failure to appear or failure to pay fines or fees. See State v. Soria, 217 Ariz. 101, 102-03, ¶¶ 5-6, 170 P.3d 710, 711-12 (App. 2007) (citing Maricopa County Superior Court Administrative Order No. 2004199). In this case, no bench warrant was issued for Cooper; instead, probation he was office arrested after by he prescription pain medication. his probation admitted taking officer his at the mother s Moreover, he was not arrested for his failure to pay a fine or fee. The record does not contain a warrant, a minute entry reflecting that a warrant was issued, a recommendation for a bench warrant fee in Cooper s probation 3 violation report, or any indication that Cooper was informed of a warrant fee before it was imposed. ¶7 Therefore, the trial court erred in ordering Cooper to pay a bench warrant fee, and that portion of the court s order was illegal. Accordingly, we vacate the portion of the court s order requiring Cooper to pay the bench warrant fee, and we affirm the court s order in all other respects. /S/ LAWRENCE F. WINTHROP, Chief Judge CONCURRING: /S/ MICHAEL J. BROWN, Judge /S/ MARGARET H. DOWNIE, Judge 4

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