State v. McCartney ( 2021 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
STACEY ANN MCCARTNEY, Appellant.
No. 1 CA-CR 20-0477
FILED 7-1-2021
Appeal from the Superior Court in Maricopa County
No. CR2016-030308-001
The Honorable Glenn A. Allen, Judge Pro Tempore
AFFIRMED IN PART; VACATED IN PART AND REMANDED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Jillian B. Francis
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Jennifer Roach
Counsel for Appellant
OPINION
Judge Lawrence F. Winthrop delivered the opinion of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Cynthia J. Bailey joined.
STATE v. MCCARTNEY
Opinion of the Court
W I N T H R O P, Judge:
¶1 After Stacey Ann McCartney was convicted of two drug
offenses, the superior court suspended her sentences, imposed probation,
and ordered her to pay various fines, fees, and assessments. She appealed
her convictions and completed her probation before that appeal concluded.
After she completed probation, but while her appeal remained pending, the
superior court entered a criminal restitution order under Arizona Revised
Statutes (“A.R.S.”) section 13-805(C)(1) that imposed interest on the unpaid
balance of her payment obligations. McCartney timely appealed from the
order, arguing that under Arizona Rule of Criminal Procedure (“Rule”)
31.7(a)(2), the court may not enter a criminal restitution order imposing
interest on fines and other obligations until a defendant’s appeal is
concluded. McCartney contends that to the extent § 13-805(C)(1) provides
otherwise, it violates principles of separation of powers.
¶2 We hold that the two provisions conflict only insofar as they
relate to entry of an order imposing fines and related surcharges.
Accordingly, we vacate the part of the criminal restitution order that
includes McCartney’s drug offense fine and surcharge, along with any
accrued interest associated with that fine and surcharge, and remand that
portion of the order. We affirm the restitution order related to McCartney’s
other unpaid monetary obligations and associated interest.
FACTS AND PROCEDURAL HISTORY
¶3 A jury convicted McCartney of possession or use of
dangerous drugs (methamphetamine), a class four felony, and possession
of drug paraphernalia, a class six felony. See A.R.S. §§ 13-3407(A)(1),
-3415(A).
¶4 The superior court suspended sentencing on both counts and
placed McCartney on concurrent terms of supervised probation for two
years. As a condition of her probation, the court ordered McCartney to pay:
(1) a monthly probation service fee, see A.R.S. § 13-901(A); (2) a time
payment fee, see A.R.S. § 12-116; (3) a drug offense fine with an applicable
surcharge totaling $1,830, see A.R.S. §§ 13-3407(H), 12-116.01, -116.02, 16-
954(A); (4) a probation assessment, see A.R.S. §§ 12-114.01(A), -269; (5)
criminal penalty assessments, see A.R.S. § 12-116.04(A); and (6) victim rights
enforcement assessments, see A.R.S. § 12-116.09(A).
¶5 This court affirmed McCartney’s convictions and probation
on appeal. See State v. McCartney, 1 CA-CR 18-0724, 2020 WL 1027666 (Ariz.
2
STATE v. MCCARTNEY
Opinion of the Court
App. Mar. 3, 2020) (mem. decision). The Arizona Supreme Court later
denied McCartney’s petition for review, and the mandate in that appeal
issued December 23, 2020.
¶6 While McCartney’s petition for review was pending,
however, she was discharged from probation. Upon discharge, McCartney
still owed $1,284 in monthly probation service fees, the $1,830 drug offense
fine and surcharge, $26 for the criminal penalty assessments, and $4 for the
victim rights enforcement assessments—for a combined total of $3,144. The
day McCartney was discharged, the court entered a criminal restitution
order, effective October 22, 2020, on the unpaid balance of each monetary
obligation, plus accruing statutory interest.
¶7 McCartney timely appealed the criminal restitution order.
We have jurisdiction under the Arizona Constitution, article 6, section 9,
and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(3).
ANALYSIS
¶8 McCartney argues A.R.S. § 13-805(C)(1) violates separation of
powers because it conflicts with Rule 31.7(a)(2) and therefore intrudes on
1
our supreme court’s rulemaking power.
¶9 We review de novo the interpretation of rules and statutes. See
Duff v. Lee, 250 Ariz. 135, 138, ¶ 11 (2020); State v. Hansen, 215 Ariz. 287, 289,
¶ 6 (2007).
¶10 In Arizona, the legislature possesses those powers “not
expressly prohibited or granted to another branch of the government.”
State ex rel. Napolitano v. Brown, 194 Ariz. 340, 342, ¶ 5 (1999) (quoting Adams
v. Bolin, 74 Ariz. 269, 283 (1952)). Our supreme court, however, has
“exclusive constitutional authority to enact rules that govern procedural
matters in all Arizona courts.” State ex rel. Romley v. Ballinger, 209 Ariz. 1,
2, ¶ 6 (2004) (citing Ariz. Const. art. 6, § 5(5)). The supreme court cannot,
however, enlarge or diminish substantive rights provided by statute.
Marianne N. v. Dep’t of Child Safety, 243 Ariz. 53, 56, ¶ 14 (2017) (citing Daou
v. Harris, 139 Ariz. 353, 357-58 (1984)). Particularly in addressing topics, like
1 Under Article 3 of the Arizona Constitution, our state government’s
three branches “shall be separate and distinct, and no one of such
departments shall exercise the powers properly belonging to either of the
others.”
3
STATE v. MCCARTNEY
Opinion of the Court
restitution, implicating criminal victims’ rights,2 the legislative and judicial
branches of government both have some rulemaking authority. See Hansen,
215 Ariz. at 290-91, ¶¶ 11-17; Brown, 194 Ariz. at 343, ¶ 11 (recognizing
limitations on the legislature’s rulemaking power under the Victims’ Bill of
Rights). However, “in the event of [an] irreconcilable conflict between a
procedural statute and a rule, the rule prevails.” Seisinger v. Siebel, 220 Ariz.
85, 89, ¶ 8 (2009).
¶11 Presented with an argument that a statute violates separation
of powers, we begin by determining whether the statute and the rule can
be harmonized. Id. at 91, ¶ 24; Hansen, 215 Ariz. at 289, ¶¶ 7-8. When
possible, we construe rules and statutes in a way that harmonizes them and
does not violate the constitution. See Readenour v. Marion Power Shovel, 149
Ariz. 442, 445 (1986) (citing Ariz. Downs v. Ariz. Horsemen’s Found., 130 Ariz.
550, 554 (1981)); State v. Silva, 222 Ariz. 457, 460, ¶ 13 (App. 2009). Only if a
conflict exists will we continue our analysis to determine whether a
challenged provision is substantive or procedural, the former being the
legislature’s province and the latter the domain of the supreme court.
Seisinger, 220 Ariz. at 91, ¶ 24; Hansen, 215 Ariz. at 289, ¶ 9.
¶12 As we recently held in State v. Meinerz, 1 CA-CR 18-0557, 2019
WL 2647469 (Ariz. App. June 27, 2019) (mem. decision),3 however, there is
no express conflict between the two provisions. Because the two provisions
do not irreconcilably conflict, A.R.S. § 13-805(C)(1) does not violate
separation of powers.
¶13 As relevant here, § 13-805(C)(1) requires that “[a]t the time” a
defendant completes his or her probation or sentence, the superior court
shall enter “[a] criminal restitution order in favor of the state for the unpaid
balance, if any, of any fines, costs, incarceration costs, fees, surcharges or
assessments imposed.” Under § 13-805(E), enforcement of such an order
by the state on its behalf “includes the collection of interest that accrues at
2 See Ariz. Const. art. 2, § 2.1 (enumerating the Victims’ Bill of Rights).
3 Under Rule 111(c)(1)(C) of the Arizona Rules of the Supreme Court,
“[m]emorandum decisions of Arizona state courts are not precedential and
such a decision may be cited only . . . for persuasive value, but only if it was
issued on or after January 1, 2015; no opinion adequately addresses the
issue before the court; and the citation is not to a depublished opinion or a
depublished portion of an opinion.” Meinerz, which was issued after
January 1, 2015, qualifies for citation under the conditions provided in Rule
111(c)(1)(C).
4
STATE v. MCCARTNEY
Opinion of the Court
a rate of four percent a year.”4 Rule 31.7(a)(2) provides that “[a] sentence to
pay a fine is stayed pending appeal.” By its plain language, Rule 31.7(a)(2)
pertains solely to fines and makes no mention of costs, fees, surcharges,
penalties, or assessments. See Meinerz, 1 CA-CR 18-0557, at *4, ¶ 18 n.4.
¶14 McCartney contends the statute and the rule conflict, but § 13-
805(C)(1) says nothing about entry of a criminal restitution order while a
defendant’s appeal is pending. Compare Hansen, 215 Ariz. at 289, ¶¶ 7-8
(concluding that where a statute and rule provided “patently contradictory
instructions,” they could not be harmonized). Further, the statute imposes
no deadline by which the superior court must issue a criminal restitution
order, although it must do so “within a reasonable time” after the defendant
completes his or her probation or sentence. State v. Pinto, 179 Ariz. 593, 596
(App. 1994). McCartney argues, however, that the statute conflicts with
Rule 31.7(a)(2) because it allows interest to begin to run on a criminal
restitution order before the defendant’s appeal is concluded. We agree that
a criminal restitution order for payment of a fine entered before the
defendant’s appeal is complete would be inconsistent with Rule 31.7(a)(2).
Accordingly, we may harmonize § 13-805(C)(1) and the rule by construing
the statute to allow entry of a criminal restitution order for the payment of
a fine only after the defendant’s appellate proceedings have concluded.
¶15 In Meinerz, we confronted a situation much like that found
here—in which a defendant’s unpaid monetary sanctions were converted
to a criminal restitution order while his appeal was pending—and
concluded A.R.S. § 13-805(C)(1) and Rule 31.7(a)(2) could be harmonized.
See 1 CA-CR 18-0557, at *3-4, ¶¶ 16, 20. We further concluded that
“[w]ithout striking down any portion of A.R.S. § 13-805, . . . Rule 31.7(a)(2)
requires that entry of a [criminal restitution order] for payment of a fine
must be stayed pending a defendant’s appeal.” Id. at *4, ¶ 21. We then
vacated the defendant’s criminal restitution order for the drug offense fine
and surcharge, along with accrued interest, and ordered the criminal
restitution order stayed until the final mandate in the appeal was issued.5
Meinerz, 1 CA-CR 18-0557, at *4, ¶ 23. We also held that our decision was
4 The interest rate may be greater in other instances. See A.R.S. §§ 13-
805(E), 44-1201.
5 In Meinerz, the criminal restitution order was issued during the
pendency of the defendant’s appeal from his convictions and sentences,
and the defendant filed an amended notice of appeal to incorporate issues
arising from the criminal restitution order. See 1 CA-CR 18-0557, at *1, ¶ 3.
5
STATE v. MCCARTNEY
Opinion of the Court
not meant to modify the portion of the criminal restitution order relating to
the monthly probation service fee. Id.6
¶16 Construing § 13-805(C)(1) in this manner is consistent with
the rule that “[o]ur rules of procedure and statutes should be harmonized
wherever possible and read in conjunction with each other.” Phoenix of
Hartford, Inc. v. Harmony Rests., Inc., 114 Ariz. 257, 258 (App. 1977). Because
A.R.S. § 13-805(C)(1) and Rule 31.7(a)(2) can be harmonized, they do not
irreconcilably conflict.
¶17 Our conclusion, therefore, requires us to vacate that portion
of the superior court’s criminal restitution order for the drug offense fine
and surcharge of $1,830, along with any associated accrued interest.
Because the mandate has since issued on McCartney’s appeal of her
convictions and sentences, we remand for the superior court to issue a
criminal restitution order regarding the drug offense fine and surcharge
and related interest.
¶18 The conclusion that § 13-805(C)(1) does not allow the superior
court to enter a criminal restitution order for payment of a fine until the
defendant’s appeal is complete does not apply to a criminal restitution
order for payment of other unpaid monetary sanctions that are not fines.
See Meinerz, 1 CA-CR 18-0557, at *4, ¶¶ 18 n.4, 23. Relying on State v. Dustin,
247 Ariz. 389 (App. 2019), in which we held in part that a probation
assessment is a fine, see id. at 391-92, ¶¶ 7-11, McCartney argues we should
treat the other monetary assessments as fines and vacate the remainder of
the court’s criminal restitution order. The superior court did not, however,
incorporate McCartney’s probation assessment or the time payment fee in
the criminal restitution order; accordingly, her argument that these
constitute a fine is a non sequitur. As for the criminal penalty assessments
and the victim rights enforcement assessments, McCartney provides no
compelling rationale or supporting authority for why those obligations
should be treated as “fines” under Rule 31.7(a)(2). Finally, as for the
monthly probation service fees, McCartney concedes “[c]ases defining the
term ‘fine’ within Arizona’s statutes suggest that the $65 monthly probation
services fee would not be a fine, penalty or sanction because this fee is not
imposed for the conviction itself, but for services provided through
probation.” See, e.g., Dustin, 247 Ariz. at 391, ¶ 6 (discussing State v.
6 The State argues, and McCartney ultimately concedes, that the
superior court may not enter a criminal restitution order that delays accrual
of interest pending completion of the defendant’s appeal. State v. Lopez, 231
Ariz. 561, 562, ¶ 5 (App. 2013).
6
STATE v. MCCARTNEY
Opinion of the Court
Connolly, 216 Ariz. 132, 132-33, ¶ 3 (App. 2007)). This court has previously
declined to treat such fees as fines, see Meinerz, 1 CA-CR 18-0557, at *4, ¶ 23,
and we decline to do so now. Accordingly, our decision to vacate that
portion of the superior court’s criminal restitution order involving fines
does not affect any other portion of the order related to McCartney’s other
unpaid monetary obligations and accrued interest.
CONCLUSION
¶19 We vacate the portion of the superior court’s criminal
restitution order for the drug fine and surcharge of $1,830, along with any
related accrued interest, and remand for the court to issue a criminal
restitution order regarding the drug offense fine and surcharge and related
interest. The portions of the criminal restitution order related to
McCartney’s other unpaid monetary obligations and accruing interest are
affirmed and remain intact.
AMY M. WOOD • Clerk of the Court
FILED: AA
7