                                                                       FILED BY CLERK
                            IN THE COURT OF APPEALS                        JUN 17 2008
                                STATE OF ARIZONA                           COURT OF APPEALS
                                  DIVISION TWO                               DIVISION TWO




THE STATE OF ARIZONA,                        )
                                             )          2 CA-CR 2007-0202
                                Appellee,    )          DEPARTMENT A
                                             )
                    v.                       )          OPINION
                                             )
LUIS ALBERTO MORENO-MEDRANO,                 )
                                             )
                                Appellant.   )
                                             )


           APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                Cause No. CR-20062797

                             Honorable Paul Tang, Judge
                         Honorable Stephen C. Villarreal, Judge

                                      AFFIRMED


Terry Goddard, Arizona Attorney General
 By Randall M. Howe and Laura P. Chiasson                                        Tucson
                                                                  Attorneys for Appellee

Robert J. Hirsh, Pima County Public Defender
 By Rose Weston                                                                   Tucson
                                                                  Attorneys for Appellant


H O W A R D, Presiding Judge.

¶1           After a jury trial, appellant Luis Moreno-Medrano was convicted of aggravated

assault with a deadly weapon or dangerous instrument and attempted armed robbery, both
dangerous-nature offenses. The court sentenced him to concurrent, presumptive prison

terms of 7.5 years. On appeal, Moreno-Medrano claims the court erred in denying his

motion to suppress a statement he had made to police, ordering him to pay attorney fees

without making certain factual findings, entering a criminal restitution order with respect to

the fees imposed, and considering his claim of innocence as a denial of responsibility at

sentencing. Finding no error, we affirm.

                                           Facts

¶2            “We view the facts in the light most favorable to sustaining the convictions.”

State v. Robles, 213 Ariz. 268, ¶ 2, 141 P.3d 748, 750 (App. 2006). Moreno-Medrano

approached the victim, a delivery driver, who was unloading a truck outside a business.

Moreno-Medrano asked if he could help unload the truck, but the victim said that company

policy prohibited it. Moreno-Medrano left but returned a short time later and pointed a gun

at the victim, demanding money. The victim ran to the other side of the trailer on his truck

and hid. Moreno-Medrano apparently left. The victim went to a nearby restaurant and

asked the manager to call the police. The police apprehended Moreno-Medrano and the

victim identified him. Moreno-Medrano was convicted and now appeals.

                                   Motion to Suppress

¶3            Moreno-Medrano argues the trial court erred in denying his motion to suppress

his statement to the police, contending he did not validly waive his rights under Miranda

v. Arizona, 384 U.S. 436 (1966). We review the court’s ruling for an abuse of discretion,


                                              2
considering only the evidence presented at the suppression hearing and viewing that

evidence in the light most favorable to sustaining the trial court’s ruling. See State v. Gay,

214 Ariz. 214, ¶ 30, 150 P.3d 787, 796 (App. 2007). We review de novo the court’s legal

conclusions. See State v. Smith, 197 Ariz. 333, ¶ 2, 4 P.3d 388, 390 (App. 1999).

¶4            “‘Answering questions after police properly give the Miranda warnings

constitutes a waiver by conduct.’” State v. Trostle, 191 Ariz. 4, 14, 951 P.2d 869, 879

(1997), quoting State v. Tapia, 159 Ariz. 284, 287, 767 P.2d 5, 8 (1988); see also North

Carolina v. Butler, 441 U.S. 369, 373 (1979). During a custodial interrogation, a detective

advised Moreno-Medrano of his rights pursuant to Miranda. The detective asked Moreno-

Medrano if he understood his rights. Moreno-Medrano said “yes.” Without specifically

asking if Moreno-Medrano waived those rights, the detective then began asking Moreno-

Medrano questions about the incident. Moreno-Medrano answered all questions without

asking for counsel and without attempting to terminate the interview.

¶5            By stating that he understood his rights and then engaging in “a course of

conduct indicating waiver,” Butler, 441 U.S. at 373, Moreno-Medrano validly waived his

rights to remain silent and to have counsel present. See State v. Montes, 136 Ariz. 491, 495-

96, 667 P.2d 191, 195-96 (1983) (waiver by conduct where defendant indicated he

understood rights, answered questions freely, did not seek counsel, and did not try to

terminate questioning). The trial court therefore did not abuse its discretion in denying his

motion to suppress the statement.


                                              3
¶6            Moreno-Medrano further argues that because the evidence shows the police

department routinely fails to obtain explicit waivers and even trains officers “to affirmatively

ignore any inquiry” regarding waiver, “the spirit and intent of Miranda” are not being

fulfilled. He suggests we draw a distinction between inadvertent failure to obtain an explicit

waiver and this officer’s deliberate failure to obtain an explicit waiver. We agree that the

better practice is to obtain an explicit waiver from the suspect. But our supreme court has

held, without considering the subjective intent of the officer, that an explicit waiver is not

required. See Trostle, 191 Ariz. at 14, 951 P.2d at 879; see also State v. Jones, 203 Ariz.

1, ¶ 9, 49 P.3d 273, 277 (2002) (explicit statement waiving Miranda not required). We

cannot disregard the decisions of our supreme court. State v. Newnom, 208 Ariz. 507, ¶ 8,

95 P.3d 950, 951 (App. 2004). Moreover, the general practices of the police department

are not relevant to the inquiry of whether, on the facts of this case, the defendant

intelligently and knowingly waived his rights by conduct. See Montes, 136 Ariz. at 495, 667

P.2d at 195 (waiver determination “focuses on the particular facts and circumstances

surrounding a case”).

                                     Imposition of Fees

¶7            Moreno-Medrano also argues the trial court committed fundamental error

when it ordered him to reimburse Pima County $400 in attorney fees and pay a $25 indigent

administrative assessment without first ascertaining his financial ability to pay these amounts.

He did not, however, object to the imposition of fees at arraignment or at sentencing. When


                                               4
a defendant does not object below to an alleged error, we review solely for fundamental

error. State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005). Fundamental

error is “‘error going to the foundation of the case, error that takes from the defendant a right

essential to his defense, and error of such magnitude that the defendant could not possibly

have received a fair trial.’” Id., quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980,

982 (1984). “To prevail under this standard of review, a defendant must establish both that

fundamental error exists and that the error in his case caused him prejudice.” Id. ¶ 20.

¶8            The fees at issue were imposed pursuant to A.R.S. § 11-584 and Rule 6.7(d),

Ariz. R. Crim. P. Section 11-584(B)(1) authorizes the court to assess defendants “an

indigent administrative assessment of not more than twenty-five dollars.” Section 11-

584(B)(3) permits the court to require a defendant to “repay to the county a reasonable

amount to reimburse the county for the cost of the defendant’s legal defense.” Section 11-

584(C) provides that when “determining the amount and method of payment[,] the court

shall take into account the financial resources of the defendant and the nature of the burden

that the payment will impose.” Finally, Rule 6.7(d) provides that, if the court determines

the defendant has the “financial resources which enable him or her to offset in part the costs

of the legal services to be provided, the court shall” require the defendant to pay “such

amount as [the court] finds he or she is able to pay without incurring substantial hardship.”




                                               5
¶9              Before imposing fees pursuant to § 11-584 and Rule 6.7(d), the court is

required to make specific factual findings that the defendant has the ability to pay the fees

imposed and that the fees will not cause a substantial hardship. State v. Taylor, 216 Ariz.

327, ¶ 25, 166 P.3d 118, 125 (App. 2007). The court must also make a finding regarding

the actual cost of the legal services provided. See id. However, if a defendant fails to pay

the assessed fees, counsel cannot withdraw and the defendant will not face contempt

proceedings. Ariz. R. Crim. P. 6.7(d); see also Espinoza v. Superior Court, 166 Ariz. 557,

561-62, 804 P.2d 90, 94-95 (1991). Rather, the order of fees may only be enforced as a

civil judgment. See Ariz. R. Crim. P. 6.7(d); Espinoza, 166 Ariz. at 562, 804 P.2d at 95.

¶10             The court imposed these fees at Moreno-Medrano’s arraignment and

reconfirmed the obligation at sentencing. It is unclear from the record whether the court had

all of Moreno-Medrano’s financial information available to it at the arraignment, but it did

not make express findings regarding Moreno-Medrano’s financial status at either hearing.

¶11             Division One of this court has held that the failure to make the required

findings before imposing attorney fees constituted fundamental error. See State v. Lopez,

175 Ariz. 79, 82, 853 P.2d 1126, 1129 (App. 1993). The court predicated its conclusion

in Lopez on the observation that the right to counsel is fundamental under both the United

States and Arizona Constitutions. Id. It then concluded that, therefore, the failure to make

the findings provided for in Rule 6.7(d) was fundamental error. Lopez, 175 Ariz. at 82, 853

P.2d at 1129.


                                             6
¶12           We cannot agree that the fundamental nature of the right to counsel compels

the conclusion that the court’s failure to make the requisite findings regarding reimbursement

constitutes fundamental error. The Lopez court cited Espinoza for its holding that the

contribution provisions in § 11-584 and Rule 6.7(d) do not violate a defendant’s

fundamental right to representation. Lopez, 175 Ariz. at 82, 853 P.2d at 1129. Espinoza

so held because “[c]ounsel cannot withdraw, and the defendant does not face potential

imprisonment for contempt for failing to comply with the order.” 166 Ariz. at 561-62, 804

P.2d at 94-95. Thus, a defendant’s fundamental right to counsel remains intact regardless

of the reimbursement order or the defendant’s failure to comply with it.

¶13           Moreover, Lopez preceded Henderson and its clarification of the fundamental

error standard. And failing to make the required findings cannot fairly be characterized as

one of those “rare” circumstances that deprives the defendant of a right essential to his

defense or otherwise renders it impossible for him to have had a fair trial. See Henderson,

210 Ariz. 561, ¶ 19, 115 P.3d at 607. After Henderson, we conclude this part of Lopez is

no longer correct and find that the imposition of the fees without the findings was not

fundamental error.

¶14           We also conclude that Moreno-Medrano has failed to show that the trial court

did not consider his financial ability in imposing these fees and thereby committed

fundamental error. Both a report prepared by pretrial services before his arraignment and

the presentence report contained information about Moreno-Medrano’s financial


                                              7
circumstances. Nothing in the record indicates that the court failed to consider this

information. See State v. Medrano, 185 Ariz. 192, 196, 914 P.2d 225, 229 (1996) (“Judges

are presumed to know and follow the law and to consider all relevant sentencing information

before them.”). Moreover, Moreno-Medrano has not produced any authority to suggest an

alleged error in considering his ability to pay is fundamental. See Henderson, 210 Ariz.

561, ¶¶ 22, 24, 115 P.3d at 608 (appellant has burden to show error and that error is

fundamental).

¶15           Moreno-Medrano also appears to argue it would have been fundamental error

to impose the fees even if the court had made the requisite findings. He claims that

information in the presentence report shows he did not have the financial ability to

contribute to the cost of his defense and cites State v. Torres-Soto, 187 Ariz. 144, 146, 927

P.2d 804, 806 (App. 1996), for the proposition that “overriding considerations about

integrity of [the] justice system” render the imposition of attorney fees fundamental error

when a defendant clearly cannot afford such fees. But the basis for finding fundamental

error in Torres-Soto was the imposition of $85,500 in surcharges pursuant to A.R.S. §§ 12-

116.01 and 12-116.02, despite information in the presentence report suggesting the

defendant was a “pauper.” 187 Ariz. at 145-46, 927 P.2d at 805-06. The court essentially

concluded that the trial court had abused its discretion in imposing the surcharges and that

the abuse was so egregious that it rose to the level of fundamental error. See id. The court

in Torres-Soto specifically noted, however, that in the absence of fundamental error


                                             8
involving the $85,500 in surcharges, the court would not have addressed any alleged error

with respect to the “unobjected-to imposition of [a $375] attorneys’ fee[],” despite the lack

of findings below. Id. at 145, 927 P.2d at 805, citing Trantor v. Fredrikson, 179 Ariz. 299,

300, 878 P.2d 657, 658 (1994) (errors in imposing attorney fees not raised at trial waived

on appeal). Here, Moreno-Medrano did not object to the fees or the failure to make findings

and was assessed no more than $425. The “overriding considerations” present in Torres-

Soto are simply not present here. The trial court therefore did not commit fundamental error

in imposing the fees.

                               Criminal Restitution Order

¶16           Moreno-Medrano further argues the trial court erred in reducing the $400

attorney fee and $25 indigent administrative assessment ordered under A.R.S. § 11-584(B)

to a judgment and entering a criminal restitution order at sentencing. He contends that

A.R.S. § 13-805 only permits those fees to be reduced to a criminal restitution order at the

completion of a defendant’s sentence or term of probation and that the error alleged here

will result in immediate accrual of interest on his obligation under § 13-805(C). Because

Moreno-Medrano failed to object below, we again review solely for fundamental, prejudicial

error. See Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607. Moreno-Medrano bears

the burden of demonstrating that error occurred, that it was fundamental, and that it

prejudiced him. See id. ¶¶ 19-20, 23.




                                             9
¶17           Moreno-Medrano does not argue the alleged error was fundamental. See State

v. Ramsey, 211 Ariz. 529, n.6, 124 P.3d 756, 766 n.6 (App. 2005) (noting defendant’s

failure to argue fundamental error); State v. Cons, 208 Ariz. 409, ¶ 3, 94 P.3d 609, 611

(App. 2004) (same); see also Ariz. R. Crim. P. 31.13(c)(1)(vi). That argument is therefore

waived. See State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1989).

¶18           Additionally, we have held in a different context that fees ordered under § 11-

584(B) “are not punitive in nature or related to other court-imposed penalties.” State v.

Connolly, 216 Ariz. 132, ¶ 3, 163 P.3d 1082, 1082-83 (App. 2007); see also § 13-805(C)

(criminal restitution order continues in effect after sentence is served). Thus, even if

Moreno-Medrano is correct that the trial court erred, we cannot see how reducing non-

punitive fees the court was authorized to impose to a criminal restitution order could result

in an illegal sentence.    See Ariz. R. Crim. P. 26.1(b) (defining sentence as “the

pronouncement by the court of the penalty imposed upon the defendant after a judgment

of guilty”) (emphasis added). Nor could it otherwise be construed as “‘error going to the

foundation of the case, error that takes from the defendant a right essential to his defense,

and error of such magnitude that the defendant could not possibly have received a fair

trial.’” Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d at 607, quoting State v. Hunter, 142

Ariz. 88, 90, 688 P.2d 980, 982 (1984). Accordingly, absent any argument or authority that

the alleged error here was fundamental, Moreno-Medrano cannot sustain his burden in a

fundamental error analysis.


                                             10
                          Insistence on Innocence at Sentencing

¶19            Moreno-Medrano last contends that, in sentencing him, the trial court

improperly adopted the prosecutor’s position that Moreno-Medrano’s insistence on his

innocence was a factor supporting a presumptive sentence. Because he failed to raise this

issue below, we review solely for fundamental error. See Henderson, 210 Ariz. 561, ¶ 19,

115 P.3d at 607; see also State v. Ruggiero, 211 Ariz. 262, n.6, 120 P.3d 690, 697 n.6

(App. 2005).

¶20            A defendant’s refusal “to publicly admit his guilt . . . is irrelevant to a

sentencing determination.” State v. Carriger, 143 Ariz. 142, 162, 692 P.2d 991, 1011

(1984). Because it is improper to do so, we presume the court did not consider Moreno-

Medrano’s insistence on his innocence unless the record indicates otherwise. See State v.

Phillips, 202 Ariz. 427, ¶ 51, 46 P.3d 1048, 1059 (2002) (presuming trial court considered

only proper evidence at sentencing).

¶21            At sentencing, the trial court stated:

               Mr. Moreno-Medrano, I have considered your letter, as I said,
               even though to the presentence report author you still maintain
               your innocence. And you’re entitled to do so, but I have
               considered the fact that you have indicated, if you will, a sense
               of remorse with respect to the situation. And that was clearly
               evident in your letter.

Although the court mentioned that Moreno-Medrano maintained his innocence and had the

right to do so, it did not state that it considered Moreno-Medrano’s insistence on his

innocence as a factor in sentencing him. Indeed, the statement suggests the court considered

                                              11
Moreno-Medrano’s remorse, not his insistence on his innocence. Nothing in the record

contradicts the presumption that the court considered only evidence properly related to the

sentencing decision. See Phillips, 202 Ariz. 427, ¶ 51, 46 P.3d at 1059. We therefore find

no error, fundamental or otherwise.



                                       Conclusion

¶22          Based on the foregoing, Moreno-Medrano’s convictions and sentences are

affirmed.


                                             ____________________________________
                                             JOSEPH W. HOWARD, Presiding Judge

CONCURRING:


____________________________________
JOHN PELANDER, Chief Judge


____________________________________
J. WILLIAM BRAMMER, JR., Judge




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