                            IN THE
             ARIZONA COURT OF APPEALS
                         DIVISION TWO


                     THE STATE OF ARIZONA,
                            Appellee,

                               v.

                      REUBEN RENEE COTA,
                           Appellant.

                     No. 2 CA-CR 2013-0185
                     Filed February 25, 2014

         Appeal from the Superior Court in Pima County
                      No. CR20111966001
            The Honorable Deborah Bernini, Judge

           AFFIRMED IN PART; VACATED IN PART


                           COUNSEL

Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Kathryn A. Damstra, Assistant Attorney General, Tucson
Counsel for Appellee

Nicole Farnum, Phoenix
Counsel for Appellant


                           OPINION

Judge Eckerstrom authored the opinion of the Court, in which
Presiding Judge Kelly and Judge Espinosa concurred.
                           STATE v. COTA
                          Opinion of the Court

E C K E R S T R O M, Judge:

¶1           Following a jury trial, appellant Reuben Cota was
convicted of armed robbery, aggravated assault with a deadly
weapon or dangerous instrument, and aggravated robbery. He was
sentenced to concurrent prison terms, the longest of which was
seven years, and the trial court entered a criminal restitution order.
On appeal, he argues the court erred by holding an additional
closing argument in his absence. Because Cota waived his presence
at that argument, and because he has failed to show any resulting
error or prejudice, we affirm his convictions and sentences.
However, we vacate the criminal restitution order, in part, and
publish this opinion to clarify the following limitation we left
implicit in State v. Lopez, 231 Ariz. 561, 298 P.3d 909 (App. 2013): as
to sentences imposed on or after April 1, 2013—the effective date of
the 2012 amendments to A.R.S. § 13-805, 2012 Ariz. Sess. Laws, ch.
269, § 2—criminal restitution orders may be lawfully entered at
sentencing for the unpaid balance of any court-ordered restitution,
pursuant to the new § 13-805(B).

                           Right to Presence

¶2           During their deliberations, jurors submitted two
questions to the trial court concerning the armed robbery charge and
the court’s instructions regarding intent and accomplices. The court
determined these questions warranted further argument by counsel
and informed the attorneys that they each would be given five
minutes to clarify the issues. See Ariz. R. Crim. P. 22.4 & cmt.
(permitting further proceedings to assist jurors at impasse, including
“additional closing argument”). The following exchange then
occurred regarding Cota’s presence at the argument:

                   [DEFENSE COUNSEL]: And if we
            are going to argue in front of the jury my
            client is on call.

                  THE COURT: Call him. Get him
            over here now while we’re making copies.

                   ....


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                           STATE v. COTA
                          Opinion of the Court

                     (Bailiff leaves to make copies.)

                     (Defense counsel makes a call.)

                   THE COURT: If you want I can tell
             them he’s clearly on his way, that we’re in
             contact with him, but we didn’t want to
             delay them any further so that they don’t
             think he’s not here.

                     It’s up to you.

                     [DEFENSE COUNSEL]:           I can do
             that.

Before the argument began, the court consequently informed the
jury, “Please understand that Mr. Cota, we are in total contact with
him, it was just going to take him an additional ten minutes to get
here to the courthouse. So with his permission and [defense
counsel]’s permission I’m going to handle the questions with him
not present.”

¶3            Citing this portion of the transcript, the state asserts in
its answering brief that Cota either waived his presence through
counsel or invited the error of which he now complains. Cota
appears to concede as much in his opening brief, and his failure to
file a reply provides an adequate basis to affirm. See State v. Morgan,
204 Ariz. 166, ¶ 9, 61 P.3d 460, 463 (App. 2002) (recognizing failure
to file reply brief on issue presented in answering brief as sufficient
basis for rejecting appellant’s position); Ariz. Dep’t of Pub. Safety v.
Indus. Comm’n, 170 Ariz. 275, 277, 823 P.2d 1283, 1285 (App. 1991)
(“A failure to reply to arguments raised in an answering brief may
justify a summary disposition of an appeal.”).

¶4            In any event, we would find no basis for relief on the
merits of Cota’s claim. The lack of an objection to proceeding in his
absence results in fundamental-error review of this issue on appeal.
See State v. Dann, 205 Ariz. 557, ¶¶ 55, 71, 74 P.3d 231, 246, 249
(2003). Under this standard, a defendant bears the burden of
showing that an error occurred, that the error was fundamental, and
that it resulted in prejudice. State v. Maldonado, 223 Ariz. 309, ¶ 25,

                                       3
                          STATE v. COTA
                         Opinion of the Court

223 P.3d 653, 657 (2010).1 Contrary to Cota’s assertion, a defendant’s
personal waiver is not required in order to proceed in his absence.
E.g., State v. Swoopes, 216 Ariz. 390, ¶¶ 29-32, 35, 166 P.3d 945, 954-56
(App. 2007) (concluding defendant not personally required to waive
presence during trial court’s answer to jury question); State v.
Campbell, 146 Ariz. 415, 418, 706 P.2d 741, 744 (App. 1985) (finding
no error when counsel waived defendant’s presence without
defendant objecting). We thus find no error, fundamental or
otherwise, in the proceedings here. See State v. Diaz, 223 Ariz. 358,
¶ 11, 224 P.3d 174, 176 (2010) (noting defendant “must first establish
that some error occurred” under any review standard). Nor has
Cota demonstrated any prejudice resulting from his absence, as the
trial court’s explanation suggested to jurors that he had acted merely
out of courtesy for their time.

                     Criminal Restitution Order

¶5           The state has independently raised an issue concerning
Cota’s criminal restitution order (CRO). At sentencing, the trial
court ordered Cota to pay $400 in attorney fees, a $20 time payment
fee, a $25 indigent administrative assessment fee, and $1,212.33 in
victim restitution. The court then reduced all “fees, assessments
and/or restitution” to a CRO, specifying that “no interest, penalties,
or collection fees” would accrue during the defendant’s
incarceration.2



      1Cota   does not assert that the alleged error was structural, and
thus presumptively prejudicial, see State v. Valverde, 220 Ariz. 582,
¶ 10, 208 P.3d 233, 236 (2009), nor would we find it to be so. See State
v. Forte, 222 Ariz. 389, ¶ 15, 214 P.3d 1030, 1035 (App. 2009)
(recognizing “not all species of ‘presence error’ are necessarily
structural”).
      2Although   boilerplate language in the sentencing minute entry
also listed a “fine” among the items that might be included in the
CRO, the court did not actually impose a fine in this case.
Accordingly, we do not resolve any questions concerning the
interplay of fines, restitution, and CROs in this opinion.


                                   4
                         STATE v. COTA
                        Opinion of the Court

¶6           Relying on this court’s decision in Lopez, 231 Ariz. 561,
¶ 2, 298 P.3d at 910, the state alerted us that the entry of the CRO
was premature and unauthorized, amounting to fundamental,
prejudicial error adverse to the defendant. 3 The state therefore
requested that the CRO be vacated. Although the CRO is indeed
flawed in several respects, the state originally overlooked that Lopez
involved only “fines, fees, and assessments,” id. ¶ 1, and its holding
does not necessarily apply to the restitution portion of a CRO. Since
this court ordered supplemental briefing on the issue, the state has
refined its position and now requests that we affirm the CRO as to
the victim’s restitution, but vacate the remainder of the order. We
agree with the state’s analysis.

¶7           Construing and applying § 13-805 in this case presents
questions of law, which we analyze de novo. See State v. Pinto, 179
Ariz. 593, 595, 880 P.2d 1139, 1141 (App. 1994). When interpreting a
statute, our task “is to ascertain and give effect to the legislature’s
intent.” State v. Zaputil, 220 Ariz. 425, ¶ 9, 207 P.3d 678, 681 (App.
2008). To do so, we look first to the language of the statute. Id. If
there is uncertainty about its meaning, we attempt to discern
legislative intent by considering the statute’s context, language,
subject matter and historical background, effects and consequences,
and spirit and purpose. Haag v. Steinle, 227 Ariz. 212, ¶ 9, 255 P.3d
1016, 1018 (App. 2011).




      3We  commend the state’s appellate counsel, Ms. Damstra, for
the professionalism she displayed in identifying this error—an error
which adversely affected her opposing party, not the state, and
which caused this court to order supplemental briefing on the
question. See ER 3.8 cmt. 1, Ariz. R. Prof’l Conduct, Ariz. R. Sup. Ct.
42 (“A prosecutor has the responsibility of a minister of justice and
not simply that of an advocate.”). We recognize that both appellate
counsel for the state and the defendant carry substantial workloads,
and we therefore appreciate the supplemental briefing received
from both parties.


                                  5
                          STATE v. COTA
                         Opinion of the Court

Restitution

¶8            We previously intimated that the 2012 amendments to
§ 13-805 permit a court to enter a CRO at sentencing in certain
circumstances. State v. Torres, 233 Ariz. 479, n.2, 314 P.3d 825, 828
n.2 (App. 2013). This case represents just such a circumstance. The
trial court sentenced Cota in April 2013 and ordered him to pay the
victim over $1,000 in restitution for medical expenses the victim had
incurred from being stabbed. Section 13-805(B) therefore applies,
and it provides as follows:

              At the time the defendant is ordered to pay
              restitution by the superior court, the court
              may enter a criminal restitution order in
              favor of each person who is entitled to
              restitution for the unpaid balance of any
              restitution order. A criminal restitution
              order does not affect any other monetary
              obligation imposed on the defendant
              pursuant to law.

Because § 13-805 no longer categorically prohibits the entry of a
CRO at sentencing, our decision in State v. Lewandowski, 220 Ariz.
531, ¶¶ 8-10, 15, 207 P.3d 784, 787-88, 789 (App. 2009), the
foundation of Lopez, has been partly superseded by this statutory
change.

¶9          Although Cota committed his offenses on June 5, 2011—
before the amendments to § 13-805 had been passed or had taken
effect—the new subsection (B) nevertheless applies to him because it
is a non-punitive, procedural provision that was in effect when he
was sentenced.4 A purely procedural change in the law applies to

      4 We    acknowledge that prior opinions of this court have
expressly applied the version of § 13-805 in effect at the time of a
defendant’s offenses. E.g., Torres, 233 Ariz. 479, n.2, 314 P.3d at 828
n.2; State v. Pena, 233 Ariz. 112, n.5, 309 P.3d 936, 941 n.5 (App. 2013);
State v. Borquez, 232 Ariz. 484, n.1, 307 P.3d 51, 56 n.1 (App. 2013);
Lopez, 231 Ariz. 561, n.1, 298 P.3d at 910 n.1. But in those cases, the
defendants had been sentenced before the effective date of the 2012

                                    6
                          STATE v. COTA
                         Opinion of the Court

pending criminal cases because a defendant has “no vested right to a
particular mode of procedure.” State v. Leonard, 151 Ariz. 1, 4, 725
P.2d 493, 496 (App. 1986). Procedural law “‘prescribes the method
of enforcing a right or obtaining redress for the invasion of that
right,’” whereas substantive law “‘creates, defines and regulates
rights.’” State v. Weinbrenner, 164 Ariz. 592, 593, 795 P.2d 235, 236
(App. 1990), quoting State v. Fletcher, 149 Ariz. 187, 191, 717 P.2d 866,
870 (1986) (emphasis omitted). “Statutory changes are procedural if
they have neither made criminal a previously innocent act nor
aggravated a crime previously committed nor provided greater
punishment nor changed proof necessary to convict.” State v.
Beltran, 170 Ariz. 406, 408, 825 P.2d 27, 29 (App. 1992).

¶10            An examination of the legislative intent and effects of
§ 13-805(B) confirms its procedural character. See State v. Henry, 224
Ariz. 164, ¶ 9, 228 P.3d 900, 903 (App. 2010). The primary purpose
of this provision is to provide crime victims a mechanism for
collecting the “prompt restitution” they are entitled to receive under
article II, § 2.1(A)(8) of the Arizona Constitution, also known as the
Victims’ Bill of Rights (VBR). See State v. Unkefer, 225 Ariz. 430, ¶ 24,
239 P.3d 749, 755 (App. 2010) (observing § 13-805 enacted “to assist
victims in obtaining prompt restitution”) (emphasis omitted),
disapproved in part on other grounds by Hoffman v. Chandler, 231 Ariz.
362, ¶ 14, 295 P.3d 939, 942 (2013); Pinto, 179 Ariz. at 596, 880 P.2d at
1142 (same); see also A.R.S. § 13-804(E) (requiring court to “make all
reasonable efforts to ensure that all persons entitled to restitution
pursuant to a court order promptly receive full restitution”). As the
supporters of the amendment explained, § 13-805(B) is designed to
create “an enforceable civil judgment within days of the time the
defendant is sentenced,” thereby “protect[ing] victims and get[ting]
them the restitution they deserve.” Minutes of H. Comm. on Jud., 50th


amendments, making it unnecessary to clarify the point. In other
cases, we have applied the version of § 13-805 in effect at the time a
CRO was entered, rather than the date of the offense. E.g., State v.
Unkefer, 225 Ariz. 430, ¶¶ 1-2, 5-6 & n.2, 239 P.3d 749, 751 & n.2
(App. 2010), disapproved in part on other grounds by Hoffman v.
Chandler, 231 Ariz. 362, ¶ 14, 295 P.3d 939, 942 (2013).


                                   7
                          STATE v. COTA
                         Opinion of the Court

Leg., 2d Reg. Sess. (Ariz. Feb. 9, 2012). In this way, the provision
serves the broader goal of restitution, which is to make victims
whole for the economic losses they suffer from crimes. State v.
Guilliams, 208 Ariz. 48, ¶ 12, 90 P.3d 785, 789 (App. 2004).

¶11          “[T]he purpose of restitution is not to punish,” State v.
Freeman, 174 Ariz. 303, 306, 848 P.2d 882, 885 (App. 1993), and the
entry of a CRO, in turn, “is not itself a penalty.” Lewandowski, 220
Ariz. 531, n.3, 207 P.3d at 786 n.3. We have recognized that “even
though it is part of the sentencing process, restitution is not a
penalty or a disability.” Zaputil, 220 Ariz. 425, ¶ 11, 207 P.3d at 681.
And this fact is not altered by the mandatory accrual of interest on
an unpaid restitution balance pursuant to § 13-805(E).5

¶12           Much like the time payment fee addressed in
Weinbrenner, 164 Ariz. at 594, 795 P.2d at 237, a CRO respecting
restitution “merely establishes a method of enforcing the . . . right to
redress.” A defendant’s restitution obligation is actually created by
the VBR, not § 13-805, and he or she may avoid the operation of this
statute “by paying . . . restitution amounts in a lump sum.”
Weinbrenner, 164 Ariz. at 594, 795 P.2d at 237. Hence, like the
restitution lien statute we upheld in State v. O’Connor, § 13-805(B) is
designed “to facilitate the collection of previously existing,
independent, court-ordered debts owed by criminal defendants as a
result of their criminal acts.” 171 Ariz. 19, 23, 827 P.2d 480, 484
(App. 1992). Consequently, we conclude it neither increases
punishment nor represents an impermissible ex post facto law. See
id.

¶13         Although in Lewandowski, 220 Ariz. 531, ¶ 15, 207 P.3d
at 789, we emphasized the accrual of interest as a basis for vacating a
CRO, that case is distinguishable because it involved interest on
“fines and surcharges,” id. ¶ 3, and the defendant was subject to
these “additional payments . . . not authorized by law” due to the
premature entry of a CRO. Id. ¶ 11. Here, by contrast, the CRO was
neither premature nor illegal, and the interest that would accrue on

      5We  address the trial court’s suspension of interest on Cota’s
CRO later in this opinion.


                                   8
                          STATE v. COTA
                         Opinion of the Court

the order would apply only to the non-punitive restitution award.
See § 13-805(B), (E).

¶14           We note that Cota has conceded in his supplemental
brief that the current version of the statute applies to him because it
is merely procedural and does not affect his punishment. The trial
court was therefore authorized by the plain terms of § 13-805(B) to
enter a CRO at sentencing for the unpaid $1,212.33 in restitution
owed to the victim.

Fees & Assessments

¶15          The trial court was not, however, authorized to include
fees and assessments in the CRO entered at sentencing. Unlike the
prior statute, which “did not distinguish between restitution, fees,
and fines,” Lewandowski, 220 Ariz. 531, n.5, 207 P.3d at 788 n.5, the
current § 13-805(C)(1) separately and specifically addresses the entry
of CROs concerning “fines, costs, incarceration costs, fees,
surcharges or assessments,” and it continues to allow such entry
only after a defendant absconds or completes a sentence or period of
probation. 6 We presume that when the legislature uses different
words in the subsections of a statute, the legislature intends to attach
different meanings and consequences to the words used. Parker v.
City of Tucson, 233 Ariz. 422, ¶ 12, 314 P.3d 100, 106 (App. 2013).
And, in fact, the pertinent legislative history confirms this
assumption.

¶16          When Representative Vogt introduced the bill that most
recently altered § 13-805, it lacked the final sentence now found in
subsection (B). See H.B. 2556, 50th Leg., 2d Reg. Sess. (Ariz. Jan. 17,
2012). Our senate then amended the bill to specify that a CRO
entered at sentencing “does not affect any other monetary obligation
imposed on the defendant pursuant to law,” meaning it is not
intended to affect such things as “fines, fees or penalties.”


      6Section  13-805(C)(2), in turn, mandates the entry of a CRO for
any unpaid restitution at that same time, in the event a discretionary
CRO for restitution has not been entered earlier pursuant to
subsection (B).


                                   9
                          STATE v. COTA
                         Opinion of the Court

S. Amends. to H.B. 2556, Gould Floor Amend. Explanation, 50th Leg., 2d
Reg. Sess. (Mar. 16, 2012). This action underscores that the
legislature understood these obligations to be different, and it
intended § 13-805 to treat them differently. The items listed in § 13-
805(C)(1) are generally distinct financial obligations that serve
different purposes than restitution. See, e.g., A.R.S. §§ 11-584(C)
(assessments, fees, and costs for defendants receiving appointed
counsel), 12-116(A) (time payment fee), 12-116.01 (surcharges), 12-
116.02 (surcharges), 13-801 (fines), 16-954(A) (surcharge); see
generally State v. Payne, 223 Ariz. 555, ¶¶ 31-32, 225 P.3d 1131, 1140-
41 (App. 2009) (noting different purposes of punitive fines and
compensatory assessments and fees, but recognizing “shades of
gray” among categories). We therefore reaffirm our holding in Lopez
that a court may not lawfully impose a CRO at sentencing with
respect to fees and assessments, regardless of whether the court also
attempts to suspend the accrual of interest on those items. 231 Ariz.
561, ¶¶ 2, 5, 298 P.3d at 910. As we indicated in Lopez, we will not
“deem an unauthorized act harmless because of a second
unauthorized act.” Id. ¶ 5.

¶17          In holding that a CRO entered at sentencing exclusively
applies to an award of restitution, we emphasize that such a CRO
cannot include a “time payment fee” imposed under § 12-116(A).
We acknowledge that this fee often must be ordered in conjunction
with an order for restitution, because defendants typically will be
unable to discharge their restitution obligations in a lump sum
payment. Nevertheless, a time payment fee is, inescapably, a “fee[]”
and an “obligation imposed . . . pursuant to law”; thus, the
legislature has specified, by the terms of § 13-805(B) and (C)(1), that
this fee cannot be included in the CRO entered at sentencing.

Interest

¶18           Finally, we note that the trial court was unauthorized to
suspend the accrual of interest on the restitution award in the CRO
here. As we indicated above, § 13-805(E) mandates that interest
accrue on a CRO until it is fully satisfied; the statute leaves courts no
discretion or authority to withhold such interest. See Lopez, 231 Ariz.
561, ¶ 5, 298 P.3d at 910. However, because the state failed to appeal
this aspect of the court’s order, we will not correct this error to

                                   10
                          STATE v. COTA
                         Opinion of the Court

Cota’s detriment, even though the CRO is “illegally lenient” in this
respect. State v. Holguin, 177 Ariz. 589, 592, 870 P.2d 407, 410 (App.
1993); see State v. Dawson, 164 Ariz. 278, 282, 792 P.2d 741, 745 (1990)
(emphasizing appellate court lacks jurisdiction to correct error
regarding mandatory restitution, absent appeal or cross-appeal); see
also A.R.S. § 13-4032(4) (allowing state to appeal order “affecting the
substantial rights of a victim” at victim’s request).

                             Disposition

¶19          For the foregoing reasons, we affirm Cota’s convictions
and sentences. We also affirm the portion of the CRO concerning
the $1,212.33 award of restitution and the suspension of interest
thereon, but the remainder of the CRO is vacated.




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