Opinion
No. 2 CA-CR 2013-0040
05-21-2014
THE STATE OF ARIZONA, Appellee, v. SARA GOLDEN, Appellant.
Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz, Section Chief Counsel, Phoenix Counsel for Appellee Law Offices of Cornelia Wallis Honchar, P.C., Tucson By Cornelia Wallis Honchar Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND
MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
No. CR20104113001
The Honorable Michael Miller, Judge
AFFIRMED IN PART AS CORRECTED; VACATED IN PART
COUNSEL
Thomas C. Horne, Arizona Attorney General
By Joseph T. Maziarz, Section Chief Counsel, Phoenix
Counsel for Appellee
Law Offices of Cornelia Wallis Honchar, P.C., Tucson
By Cornelia Wallis Honchar
Counsel for Appellant
MEMORANDUM DECISION
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Kelly and Judge Espinosa concurred. ECKERSTROM, Judge:
¶1 Appellant Sara Golden was convicted after a jury trial of first-degree murder and kidnapping and was sentenced to prison terms of life with the possibility of release after twenty-five years, and a consecutive prison term of five years. On appeal she contends the trial court erred when it entered a criminal restitution order (CRO). The state concedes the court erred. We vacate the CRO in the sentencing minute entry, but otherwise affirm.
Although the trial court expressly ordered that the kidnapping sentence be "consecutive" to the sentence on the murder conviction, and the minute entry accurately reflects this fact, the minute entry also provides for both sentences to commence on the same date. Because "[i]t is . . . manifestly impossible for consecutive sentences to both begin on the same date," State v. Young, 106 Ariz. 589, 591, 480 P.2d 345, 347 (1971), we correct the sentencing minute entry by striking the clause "commencing on January 28, 2013" with respect to count two. Cf. State v. Ovante, 231 Ariz. 180, ¶ 39, 291 P.3d 974, 982 (2013) (correcting similar error).
¶2 In its January 2013 sentencing minute entry, the trial court ordered Golden to pay certain fees and assessments, adding, "[A]ll fines, fees, assessments and/or restitution are reduced to a Criminal Restitution Order, with no interest, penalties or collection fees to accrue while the defendant is in the Department of Corrections." As Golden correctly asserts, former A.R.S. § 13-805(A), which applied when she was sentenced, provided for a CRO to be entered for any unpaid fees, assessments, and restitution "[a]t the time the defendant completes the defendant's period of probation or the defendant's sentence." 2011 Ariz. Sess. Laws, ch. 263, § 1. As this court repeatedly has determined, based on the statute, "the imposition of a CRO before the defendant's probation or sentence has expired 'constitutes an illegal sentence, which is necessarily fundamental, reversible error.'" State v. Lopez, 231 Ariz. 561, ¶ 2, 298 P.3d 909, 910 (App. 2013), quoting State v. Lewandowski, 220 Ariz. 531, ¶ 15, 207 P.3d 784, 789 (App. 2009). Because this portion of the sentencing minute entry is not authorized by statute, we must vacate the CRO. See id. ¶¶ 5-6.
The trial court deferred the issue of restitution. After Golden filed her notice of appeal, the court held a restitution hearing in February 2013 and entered an order requiring Golden and her codefendant to pay $3,699.60 in restitution, reducing that award to a similar CRO. That post-judgment ruling, however, is not part of this appeal; review of that order could only be obtained by the filing of a separate notice of appeal. See A.R.S. § 13-805(A) (specifying trial court retains jurisdiction to enter payment-related orders); State v. Fancher, 169 Ariz. 266, 266 n.1, 818 P.2d 251, 251 n.1 (App. 1991) (restitution order "'separately appealable'"), quoting State v. French, 166 Ariz. 247, 248 n.3, 801 P.2d 482, 483 n.3 (App. 1990). It is "[a]n order made after judgment affecting the substantial rights of the party." A.R.S. § 13-4033(A)(3). This is particularly so in light of our supreme court's decision in State v. Whitman, 684 Ariz. Adv. Rep. 7, ¶ 20 (Apr. 9, 2014), holding that the time for filing a notice of appeal begins at the time of the oral pronouncement of sentence.
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¶3 We note that although the statute has been amended to permit the entry of a CRO for restitution at sentencing, see 2012 Ariz. Sess. Laws, ch. 269, § 1, Golden was sentenced on January 28, 2013, before the effective date of that amendment. See State v. Cota, 234 Ariz. 180, ¶ 1, 319 P.3d 242, 243 (App. 2014). Therefore, although we affirm Golden's convictions and sentences, we vacate the CRO in the sentencing minute entry.