Opinion
No. 1 CA-CR 18-0406
02-05-2019
STATE OF ARIZONA, Appellee, v. EDUARDO GARCIA, JR., Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Jana Zinman Counsel for Appellee M. Alex Harris, P.C., Chino Valley Counsel for Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Yavapai County
No. V1300CR201580094
The Honorable Jennifer B. Campbell, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Jana Zinman
Counsel for Appellee M. Alex Harris, P.C., Chino Valley
Counsel for Appellant
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge Jennifer M. Perkins and Judge Lawrence F. Winthrop joined. THOMPSON, Judge:
¶1 Eduardo Garcia, Jr. (defendant) appeals from the trial court's sentencing order. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 In March 2015, the state charged defendant with one count of possession or use of a dangerous drug (methamphetamine), one count of possession or use of marijuana, one count of possession or use of drug paraphernalia (methamphetamine), and one count of possession or use of drug paraphernalia. Defendant pleaded guilty to one count of possession of dangerous drugs (methamphetamine), a class 4 felony. In March 2015, the trial court suspended the imposition of sentence and placed defendant on intensive probation for four years. The court ordered defendant to pay a fine of $1000 with a surcharge of 83%, plus various other assessments.
¶3 In 2016, defendant violated his probation. After finding that defendant violated his probation, the trial court reinstated him on supervised probation for three years following his release from prison in another case. The court confirmed "the existing financial obligations previously imposed" in March 2015.
¶4 In 2017, defendant violated his probation a second time. After finding that defendant violated his probation, the trial court reinstated him on intensive supervised probation for twenty-three months. The court confirmed defendant's previously imposed financial obligations.
¶5 In 2018, defendant violated his probation a third time. After finding that defendant violated his probation, the trial court revoked defendant's probation and sentenced him to one and one-half years in prison. The court confirmed defendant's previously imposed financial obligations. Defendant filed a notice of appeal on June 5, 2018.
DISCUSSION
¶6 Defendant raises one issue on appeal: whether the trial court erred by imposing an 83% surcharge rather than a 73% surcharge. The 83% surcharge was contemplated by defendant's plea agreement in 2015. Accordingly, defendant is barred from directly appealing the 83% surcharge. See Arizona Revised Statutes (A.R.S.) § 13-4033(B) (2010) ("In noncapital cases a defendant may not appeal from a judgment or sentence that is entered pursuant to a plea agreement or an admission to a probation violation."). See also Hoffman v. Chandler ex rel. County of Pima, 231 Ariz. 362 ¶ 1 (2013) (A.R.S. § 13-4033(B) "bars a defendant from directly appealing a contested post-judgment restitution order entered pursuant to a plea agreement that contemplated payment of restitution up to a capped amount. Any appellate review must be obtained through post-conviction relief proceedings.").
¶7 Moreover, even if defendant was not barred from appealing the amount of the surcharge, we find no error. The 83% surcharge was correct. See A.R.S. § 12-116.01(A) (47% surcharge), (B) (7% surcharge), (C) (2015) (6% surcharge), A.R.S. § 12-116.02 (A) (2015) (13% surcharge), A.R.S. § 16-954(A) (2015) (10% surcharge).
In his reply brief, defendant quotes from a memorandum decision of this court that was withdrawn and replaced with a memorandum decision eliminating the analysis defendant relies upon for his argument that an 83% surcharge was improper. See State v. Stiefel, 1 CA-CR 14-0532, 2015 WL 5309476, at *3, ¶¶ 14, 15 (Ariz. App. Sept. 10, 2015) (mem. decision). Ariz. R. Sup. Ct. 111(c)(1)(C) provides that a party may only cite a recent memorandum decision for persuasive value if the citation is not to a depublished portion of the decision. Further, Ariz. R. Sup. Ct. 111(c)(3) provides that a party citing a memorandum decision must provide a copy of the decision or a hyperlink to the decision, and defendant has failed to do so. On the court's own motion, it is ordered striking page 1, paragraph 1 of the reply brief. --------
¶8 Finally, defendant asks us to search the record for fundamental error. We decline to do so. See State v. Scott, 187 Ariz. 474, 478 (App. 1996) (Anders-hybrid type of briefs are not permitted. When counsel files a merits brief in a criminal appeal, "we presume that counsel has raised all arguably meritorious issues and therefore will not 'search the record'" for fundamental error.).
CONCLUSION
¶9 For the foregoing reasons, we affirm defendant's conviction and sentence.