STATE v. FIERRO

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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 DIVISION ONE FILED: 3/26/2013 RUTH A. WILLINGHAM, CLERK BY: mjt IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) DANIEL RIVERA FIERRO, ) ) Appellant. ) ) No. 1 CA-CR 12-0499 DEPARTMENT S MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2011-135839-001 The Honorable Patricia A. Starr, Judge Pro Tem AFFIRMED IN PART; VACATED IN PART; REMANDED WITH DIRECTIONS Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Alice Jones, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Jeffrey L. Force, Deputy Public Defender Attorneys for Appellant Phoenix W I N T H R O P, Chief Judge ¶1 28, Daniel Rivera Fierro appeals the trial court s March 2012 placing sentencing him on minute probation, entry and suspending ordering that his he sentencing, submit to deoxyribonucleic acid ( DNA ) testing for law enforcement identification purposes and pay the applicable fee for the cost of that testing in accordance with Arizona ( A.R.S. ) section 13-610 (West 2012). 1 Revised Statutes Fierro argues that the court erred because he was convicted of misdemeanor offenses, and thus DNA testing was not a penalty the court could legally impose under A.R.S. § 13-610. The State confesses error, and we agree. ¶2 After a one-day bench trial, the trial court found Fierro guilty of possession or use of marijuana and possession of drug paraphernalia, each a class one misdemeanor. 2 The court suspended sentencing, placed Fierro on concurrent one-year terms of unsupervised probation, and further ordered that Fierro submit to and pay for DNA testing. ¶3 Fierro filed a timely delayed notice of appeal from the trial court s March 28, 2012 sentencing minute entry. have jurisdiction pursuant to Article 6, Section 9, of We the 1 We cite the current Westlaw version of all applicable statutes because no revisions material to our decision have occurred since Fierro committed the acts forming the basis for his convictions. 2 Fierro was charged by information with possession or use of marijuana and possession of drug paraphernalia, each a class six felony. On the day of trial, the trial court ordered the offense designated as misdemeanors upon the State s motion. 2 Arizona Constitution and A.R.S. §§ 12-120.21, 13-4031, and 134033(A). ¶4 to Fierro failed to object below to the order to submit and pay for DNA testing; fundamental, prejudicial error. consequently, we review for See State v. Payne, 223 Ariz. 555, 560, ¶ 13, 225 P.3d 1131, 1136 (App. 2009). If the order was unauthorized by law, it amounts to an illegal sentence and the court fundamentally erred in imposing it. See id. at 560- 61, ¶ 14, 225 P.3d at 1136-37. ¶5 Section 13-610 provides for mandatory DNA testing for individuals who meet at least one requirement under A.R.S. § 13610(O). Subsection (O) applies only to persons who are: 1. Convicted of any felony offense. 2. Adjudicated delinquent enumerated] offenses . . . . for [certain 3. Arrested for a violation of any offense in chapter 11 of this title, a violation of § 13-1402, 13-1403, 13-1404, 13-1405, 131406, 13-1410, 13-1411, 13-1417, 13-1507, 13-1508, 13-3208, 13-3214, 13-3555 or 133608 or a violation of any serious offense as defined in § 13-706 that is a dangerous offense. ¶6 In this case, specified requirements. offenses that are not Fierro does not meet any of the Fierro was convicted of two misdemeanor enumerated within § addition, Fierro was not adjudicated delinquent. 13-610(O). In Because Fierro does not satisfy any of the requirements of § 13-610(O), he 3 should not have been subject to an order of DNA testing. Consequently, the trial court erred in ordering Fierro to submit to and pay for DNA testing, and that portion of the court s March 28, 2012 sentencing minute entry is illegal. ¶7 minute Accordingly, entry testing. we ordering vacate Fierro the to portion submit to of and the pay court s for DNA We remand this matter to the trial court and direct the court to order that any fees Fierro paid be reimbursed and Fierro s DNA convictions system, profile be unless expunged the resulting from court the from his Arizona determines that March DNA 28, 2012 identification Fierro has been convicted of another offense that would require him to submit to DNA testing pursuant to A.R.S. § 13-610. See A.R.S. §§ 13- 610(J); -4036; Payne, 223 Ariz. at 569, ¶¶ 49-50, 225 P.3d at 1145; State v. Soria, 217 Ariz. 101, 103, ¶¶ 7-8, 170 P.3d 710, 712 (App. 2007). We affirm the court s sentencing minute entry 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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