                                                                    FILED BY CLERK
                           IN THE COURT OF APPEALS                     DEC 14 2010
                               STATE OF ARIZONA
                                                                        COURT OF APPEALS
                                 DIVISION TWO
                                                                          DIVISION TWO


THE STATE OF ARIZONA,                       )
                                            )         2 CA-CR 2010-0052
                               Appellee,    )         DEPARTMENT A
                                            )
                   v.                       )         OPINION
                                            )
JAMES CHARLES RAY,                          )
                                            )
                               Appellant.   )
                                            )


         APPEAL FROM THE SUPERIOR COURT OF COCHISE COUNTY

                              Cause No. CR200900042

                         Honorable Donna M. Beumler, Judge

                                    AFFIRMED


Terry Goddard, Arizona Attorney General
 By Kent E. Cattani and Alan L. Amann                                          Tucson
                                                                Attorneys for Appellee

Zohlmann Law Offices
 By Robert J. Zohlmann                                                     Tombstone
                                                               Attorneys for Appellant


B R A M M E R, Presiding Judge.

¶1           After a bench trial, appellant James Ray was convicted of two counts of

reckless burning and ordered to pay $308,506.19 in reimbursements to various agencies

for emergency response expenses related to fighting the fire he had caused. On appeal,
Ray asserts the order was neither a proper restitution order pursuant to A.R.S. § 13-804

nor authorized by A.R.S. § 13-1709. He also contends the trial court could not require

him to reimburse federal agencies pursuant to § 13-1709(E)(2) because the definition of

“public agency” in the statute does not include federal entities. Finally, he contends the

court violated his rights to due process and to a jury trial by imposing civil liability as

part of his criminal sentence. We affirm.

                         Factual and Procedural Background

¶2            On appeal, “[w]e view the facts in the light most favorable to upholding the

trial court‟s sentence.” State v. Monaco, 207 Ariz. 75, ¶ 2, 83 P.3d 553, 555 (App. 2004).

In 2008, Ray started a home brush fire which burned out of control. The fire, which

ultimately became known as the “Moon Canyon fire,” consumed about 700 acres near

Bisbee, Arizona. Multiple agencies, through a system of intergovernmental agreements,

assisted in fighting the fire. Ray was charged with reckless burning in violation of A.R.S.

§ 13-1702(A), and reckless burning of wildlands in violation of A.R.S. § 13-1706(A),

(C)(2), both class one misdemeanors. After a two-day bench trial, the court found Ray

guilty on both counts.

¶3            At a restitution hearing, the state presented evidence of costs incurred by

three public agencies in fighting the fire, reflecting the following amounts: $53,485.38

by the United States Department of Agriculture, Forest Service (USDA); $51,521.19 by

the Bureau of Land Management (BLM); and $237,760.82 by the Arizona State Forestry

Division. The trial court suspended the imposition of sentence, placed Ray on probation

for three years, and ordered him, pursuant to §§ 13-804 and 13-1709, to pay a total of

                                            2
$308,506.19 in reimbursements to the three agencies.           The reimbursement amounts

reflected the three agencies‟ costs less a ten percent offset for the incidental benefit to the

community of burning dry brush near structures. This appeal followed.

                                         Discussion

Statutory Authority

¶4            Ray first argues the trial court lacked statutory authority to order him to pay

the reimbursement because the order was neither a proper restitution order pursuant to

§13-804, nor authorized by § 13-1709. Because Ray failed to object below, he has

forfeited the right to relief for all but fundamental, prejudicial error. State v. Henderson,

210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005). An illegal sentence, however,

constitutes fundamental error. State v. Zinsmeyer, 222 Ariz. 612, ¶ 26, 218 P.3d 1069

(App. 2009); see also State v. Lewandowski, 220 Ariz. 531, ¶ 11, 207 P.3d 784, 788

(App. 2009) (requiring defendant to make payments not authorized by law constitutes

illegal sentence).

¶5            Section 13-1709 provides, in relevant part, as follows:

              A. A person who commits an act in violation of this chapter
              that results in an appropriate emergency response or
              investigation and who is convicted of the violation may be
              liable for the expenses that are incurred incident to the
              emergency response and the investigation of the commission
              of the offense.

              B. The court may assess and collect the expenses prescribed
              in subsection A. The court shall state the amount of these
              expenses as a separate item in any final judgment, order or
              decree.

              ....

                                              3
              E. For the purposes of this section:

              1. “Expenses” means reasonable costs that are directly
              incurred by a public agency, for profit entity or nonprofit
              entity that makes an appropriate emergency response to an
              incident or an investigation of the commission of the offense,
              including the costs of providing police, fire fighting, rescue
              and emergency medical services at the scene of the incident
              and the salaries of the persons who respond to the incident….

              2. “Public agency” means this state, any city, county,
              municipal corporation or district, any Arizona federally
              recognized native American tribe or any other public
              authority that is located in whole or in part in this state and
              that provides police, fire fighting, medical or other emergency
              services.

Ray asserts the statute only imposes civil liability and does not authorize trial courts in

criminal prosecutions to determine the amount and order direct payment of expenses

incurred, as the trial court did here.

¶6            As a result of Ray‟s conviction, he “may be liable for the expenses that are

incurred incident to the emergency response and the investigation of the commission of

the offense.” § 13-1709(A). Section 13-1709(B) allows “the court” to collect and assess

those expenses. The issue on appeal is whether the trial court in this criminal proceeding

has the authority to determine the amount of the defendant‟s liability or whether that

determination can be made only in a separate civil proceeding, brought by the agency that

incurred the expense, and reduced to a judgment in that proceeding.

¶7            “The primary rule of statutory construction is to find and give effect to

legislative intent.” Mail Boxes, Etc., U.S.A. v. Indus. Comm’n, 181 Ariz. 119, 121, 888

P.2d 777, 779 (1995). We first look to the plain language of the statute as the best

                                             4
reflection of the legislature‟s intent. See id. If that language is unambiguous, we do not

employ other rules of statutory construction to interpret the statute. Janson ex rel. Janson

v. Christensen, 167 Ariz. 470, 471, 808 P.2d 1222, 1223 (1991).

¶8             Although § 13-1709(A) gives rise to a criminal defendant‟s financial

liability, the statute does not specify how the amount of the debt is determined or whether

the agency must commence a separate action to collect the debt. Compare, e.g., A.R.S.

§ 13-2314(A) (“The attorney general or a county attorney may file an action in superior

court on behalf of a person who sustains injury . . . by racketeering . . . .”). And, although

the statute prescribes a procedure for collection, § 13-1709(B) refers to “the court” at the

time of “final judgment, order, or decree,” without clarifying whether it is referring to the

court involved in the defendant‟s criminal proceeding or a court that renders a civil

judgment. Ray argues the statute “clearly” does not authorize a court in a criminal matter

to order restitution or reimbursement because the statute‟s heading includes the phrase,

“civil liability.”   However, headings to sections “are supplied for the purpose of

convenient reference and do not constitute part of the law.” A.R.S. § 1-212. Therefore,

the heading cannot control the plain meaning of the statute‟s text, although we consider it

below as an indication of legislative intent. See State v. Superior Court, 128 Ariz. 535,

537, 627 P.2d 686, 688 (1981).

¶9             To the extent the statutory language is ambiguous, we may look beyond the

statute‟s language to its context and historical background in order to determine the

legislature‟s intent. See Blake v. Schwartz, 202 Ariz. 120, ¶ 29, 42 P.3d 6, 12 (App.

2002). The statute‟s heading reads: “Emergency response and investigation costs; civil

                                              5
liability; definitions.” § 13-1709. Ray argues the phrase “civil liability” indicates that

such liability may be imposed only by a judgment in a civil action.

¶10           The legislative history, however, makes it clear that, after the heading was

drafted, the legislature amended the bill specifically to authorize a court to assess and

impose costs under § 13-1709 at the time of sentencing following a criminal conviction.

A proposed version of §13-1709 provided in subsection (A) that a person who was

convicted of a violation of chapter seventeen “may be civilly liable” for emergency

response and investigation expenses. S.B. 1242, 46th Leg., 2d Reg. Sess. (Ariz. 2004)

(introduced version).      A subsequent amendment deleted the word “civilly” from

subsection (A) and simultaneously added the current subsection (B), which allows a court

to “assess and collect the expenses prescribed in subsection A.” S.B. 1242, Senate

Amendments, Comm. on Judiciary, 46th Leg., 2d Reg. Sess. (Feb. 11, 2004). According

to the bill‟s final amended fact sheet, that amendment had the effect of “giv[ing] a judge

discretion of awarding recoupment costs to emergency response entities at the time of

sentencing for an arson crime.” S.B. 1242, Final Amended Fact Sheet, 46th Leg., 2d

Reg. Sess. (Ariz. 2004); see also State v. Payne, 223 Ariz. 555, n.5, 225 P.3d 1131, 1139

n.5 (App. 2009) (legislative fact sheets relevant legislative history and reflective of

legislative intent). It therefore is clear from the statute‟s text, together with its legislative

history, that the legislature intended to give courts the authority to assess and collect

expenses under § 13-1709 when sentencing a convicted criminal defendant. Thus, the




                                               6
trial court had the authority under § 13-1709 to enter the monetary assessment order

against Ray.1

¶11             Ray also argues that, because the definition of “public agency” in

§ 13-1709(E)(2) does not include federal agencies, the trial court had no authority to

order him to reimburse them. The statute provides, however, that a “public agency”

includes “any other public authority that is located in whole or in part in this state and

that   provides    police,   fire   fighting,   medical   or   other   emergency   services.”

§ 13-1709(E)(2). Testimony presented at the restitution hearing established BLM has

both land and employees, and provides fire fighting services, in Arizona. The USDA

also maintains multiple Forest Service offices throughout Arizona and assists the Arizona

State Forestry Division in fighting fires. Because both the BLM and USDA clearly fit the

definition of “public agency,” the court had the authority to order reimbursement to them

and the Arizona State Forestry Division. Therefore, Ray has failed to establish that the

court imposed an illegal sentence for lack of statutory authority and has failed to show

error, much less fundamental, prejudicial error.




       1
        Although the trial court used the word “restitution” when it ordered Ray to
reimburse these agencies, the terms are not important. The statutory authority for the
court‟s order is clear, and its language choice is superfluous. And, because we hold the
trial court had the authority under § 13-1709 to order Ray to pay these emergency
response expenses, we need not address his arguments that it did not have such authority
pursuant to A.R.S. § 13-804, or that the order constituted a fine which exceeded the
statutory maximum.


                                                7
Due Process

¶12           Finally, Ray argues the trial court violated his rights to due process and to a

jury trial by ordering him to pay the emergency response amounts, because it “dispose[d]

of [his] civil liability.” Because Ray raises this issue for the first time on appeal, he is

precluded from relief absent fundamental, prejudicial error. See Henderson, 210 Ariz.

561, ¶¶ 19-20, 115 P.3d at 607-08. 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.

¶ 19, quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984). Such error

must be “„clear, egregious, and curable only via a new trial.‟” State v. Bible, 175 Ariz.

549, 572, 858 P.2d 1152, 1175 (1993), quoting State v. Gendron, 168 Ariz. 153, 155, 812

P.2d 626, 628 (1991).

¶13           Ray relies on State v. Pearce, 156 Ariz. 287, 289, 751 P.2d 603, 605 (App.

1988), to support his argument that a court violates due process and a defendant‟s right to

a jury trial when it imposes reimbursement under § 13-1709. In Pearce, the defendant

pled guilty to theft. The court, interpreting the definition of “economic loss” in the

restitution statutes, held Pearce‟s restitution should be limited to the economic loss

caused by the theft and could not include breach of contract damages and lost profits that

arose as a result of the theft. Id. at 288-90, 751 P.2d at 604-06. The court held that such

contract damages were consequential and could not be assessed because they did not

“„flow‟ from the acts to which Pearce pled guilty.” Id. at 289, 751 P.2d at 605. In so



                                             8
concluding, the court discussed the threat to a defendant‟s due process rights where a

court orders payment of civil damages as a part of a sentence in a criminal case:

              A judge may infer from a jury verdict of guilt . . . that a
              defendant is liable to the crime victim. But a trial court
              cannot properly conclude that the defendant owes money to a
              third party for other unproved or disproved crimes or conduct.
              A party sued civilly has important due process rights,
              including . . . a right to a trial by jury on the specific issues of
              liability and damages.

Id., quoting State v. Reese, 124 Ariz. 212, 215, 603 P.2d 104, 107 (App. 1979). In other

words, “it is an abuse of discretion for a sentencing judge to require restitution by a

defendant for a crime in which there is no admission or adjudication of guilt or liability.”

Reese, 124 Ariz. at 214-15, 603 P.2d at 106-07. Therefore, the constitutional violation

identified in Pearce and Reese may occur when a court orders a defendant to pay for a

loss caused by “unproved or disproved crimes” when the defendant has been convicted of

other criminal acts.

¶14           Unlike the defendant in Pearce, Ray was not held liable or ordered to pay

for any losses caused by “unproved or disproved crimes.” Pursuant to § 13-1709, the

trial court ordered Ray to pay only for those losses “directly incurred” as a result of the

reckless burning acts for which he had been convicted. § 13-1709(A), (E)(1). Ray

argues the statute requires additional findings because liability under it extends only to

“reasonable” costs for “an appropriate emergency response or investigation.” However,

any additional findings to determine the reasonableness or appropriateness of the

response go only to the amount of the expenses for which he is liable. The court need not

find any additional “admission or adjudication of guilt or liability,” because the only

                                               9
conduct necessary to confirm responsibility under the statute is established by the

conviction. See Reese, 124 Ariz. at 215, 603 P.2d at 107. Therefore, the court did not

dispose of Ray‟s civil liability in violation of his due process rights or right to a trial by

jury.2 Accordingly, Ray‟s due process rights were protected and he has failed to establish

fundamental error.

                                        Disposition

¶15           For the foregoing reasons, we affirm the trial court‟s order that Ray

reimburse the three public agencies for their emergency response expenses.



                                           /s/ J. William Brammer, Jr.
                                           J. WILLIAM BRAMMER, JR., Presiding Judge

CONCURRING:


/s/ Philip G. Espinosa
PHILIP G. ESPINOSA, Judge


/s/ Joseph W. Howard
JOSEPH W. HOWARD, Chief Judge

       2
       Indeed, Ray is entitled to contest the information on which the reimbursement
amount was based. C.f. State v. Steffy, 173 Ariz. 90, 93, 839 P.2d 1135, 1138 (App.
1992) (in analogous situation, defendant has due process right to contest evidence
supporting restitution amount). Although we neither reach nor decide whether the
reimbursement ordered here also would have been proper if entered as a restitution order
pursuant to § 13-804, we note the procedure the trial court used to determine
reimbursement is analogous to that for restitution; the interests at stake and the
procedures are similar if not identical. Ray was provided an opportunity to object to the
evidence, present his own, and the court was provided sufficient information to determine
which costs flowed directly from Ray‟s criminal conduct.

                                             10
