                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

          HECTOR HUGO GARCIA DEL CASTILLO, Appellant.

                             No. 1 CA-CR 16-0564
                               FILED 9-14-2017


           Appeal from the Superior Court in Maricopa County
                        No. CR2015-156226-001
                   The Honorable Dean M. Fink, Judge

                      AFFIRMED AND REMANDED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Gracynthia Claw
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Rena P. Glitsos
Counsel for Appellant
                    STATE v. GARCIA DEL CASTILLO
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Jon W. Thompson and Judge Michael J. Brown joined.


C A M P B E L L, Judge:

¶1             Hector Hugo Garcia Del Castillo was convicted of possession
of dangerous drugs for sale and possession of narcotic drugs for sale, both
class 2 felonies. Ariz. Rev. Stat. (“A.R.S.”) §§ 13-3407, -3408. On appeal,
Garcia Del Castillo challenges only the trial court’s imposition of the fines
required by each of those statutes. He raises two arguments: first, the fines
are unconstitutional as applied to him; second, the trial court abused its
discretion by failing to consider his financial status in imposing the fines.
We disagree and affirm, remanding only for the limited purpose of
clarification from the trial court concerning the assignment of a payment
schedule.

             FACTS AND PROCEDURAL BACKGROUND

¶2              In December 2015, police officers seized approximately ten
pounds of methamphetamine (a dangerous drug) and less than one pound
of cocaine (a narcotic drug) from Garcia Del Castillo’s residence in Phoenix.
At trial, the State introduced evidence that the wholesale value of the seized
drugs was about $30,000 for the methamphetamine and between $8,000 and
$10,000 for the cocaine. Garcia Del Castillo neither objected to the State’s
evidence nor offered alternative testimony concerning the value of the
drugs.

¶3           The jury found Garcia Del Castillo guilty on both charges. The
minimum fine a court must impose on a defendant convicted of possession
of a dangerous drug for sale is mandated by A.R.S. § 13-3407(H):

              In addition to any other penalty prescribed by
              this title, the court shall order a person who is
              convicted of a violation of this section to pay a
              fine of not less than one thousand dollars or
              three times the value as determined by the court
              of the dangerous drugs involved in or giving
              rise to the charge, whichever is greater, and not



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                    STATE v. GARCIA DEL CASTILLO
                          Decision of the Court

              more than the maximum authorized by chapter
              8 of this title. A judge shall not suspend any part
              or all of the imposition of any fine required by
              this subsection.

(Emphasis added.)

¶4            Correspondingly, A.R.S. § 13-3408(F) provides that a court
shall order a defendant convicted of possession of a narcotic drug for sale
to “pay a fine of not less than two thousand dollars or three times the value
as determined by the court of the narcotic drugs involved in . . . the charge,
whichever is greater, and not more than the maximum authorized by
chapter 8 of this title.” The maximum possible fine for each of the above
convictions is capped at $150,000 by A.R.S. § 13-801(A). Furthermore, A.R.S.
§ 13-808(A) provides:

              If a defendant is sentenced to pay a fine . . . , the
              court . . . may grant permission for payment to
              be made within a specified period of time or in
              specified installments. If no such permission is
              embodied in the sentence the fine shall be
              payable immediately.

(Emphasis added.)

¶5            Pursuant to statute, the trial court imposed a $90,000 fine for
Garcia Del Castillo’s conviction of possession of a dangerous drug for sale
and a $30,000 fine for his conviction of possession of a narcotic drug for sale.
The fines represented three times the value of the respective drugs involved
in each charge. The trial court ordered Garcia Del Castillo to pay the
cumulative $120,000 fine “beginning” on the first day of the fourth month
following Garcia Del Castillo’s release from prison. Garcia Del Castillo
timely appealed.

                                DISCUSSION

¶6             On appeal, Garcia Del Castillo does not contest the accuracy
of the evidence of the drugs’ values relied on by the trial court when
imposing the $30,000 and $90,000 fines. Rather, Garcia Del Castillo argues
the imposition of the two fines are unconstitutional as applied to him and
that the trial court abused its discretion by “refusing” to consider his
financial ability to pay the fines. We disagree.




                                       3
                    STATE v. GARCIA DEL CASTILLO
                          Decision of the Court

I.     Garcia Del Castillo’s Fines Are Constitutional

¶7            Garcia Del Castillo contends that—because of his purported
indigence—his fines are unconstitutionally excessive as well as cruel and
unusual, violating both the United States and Arizona constitutions.1
Although Garcia Del Castillo argued only that the fines were
unconstitutionally excessive at trial, he asserts we should also review for
cruel and unusual punishment because the line between these violations “is
frequently blurred.” See State v. Wise, 164 Ariz. 574, 576-77 (App. 1990). We
review de novo claims regarding the constitutionality of a criminal
sentencing statute. State v. Randles, 235 Ariz. 547, 549, ¶ 4 (App. 2014).

¶8             The Eighth Amendment to the United States Constitution and
Article 2, Section 15, of the Arizona Constitution provide that “[e]xcessive
bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.” Mandatory drug fines based on quantity
and value of the drugs at issue “do not per se violate state and federal
prohibitions against excessive fines or cruel and unusual punishment.”
State v. Delgadillo, 174 Ariz. 428, 429 (App. 1993) (citations omitted). It is
“extremely rare” that a statute that does not generally violate the
prohibition against cruel and unusual punishment will result in an
unconstitutionally disproportionate sentence as applied to a specific
defendant. State v. Florez, 241 Ariz. 121, 128, ¶ 23 (App. 2016) (citation
omitted).

¶9             In State v. Wise, this court explained that an excessive fine is
one that “exceeds reasonable, usual, proper, or just punishment” or is “one
so disproportionate to the offense that it shocks public sentiment and
affronts the judgement of reasonable people.” 164 Ariz. at 576 (citations
omitted). The court also noted the existence of “a kind of loose
proportionality test” for determining whether a fine is unconstitutionally
excessive, balancing: (1) the object designed to be accomplished by the fine;
(2) the importance and magnitude of the public interest sought to be
protected by the fine; (3) the circumstances and nature of the act for which
the fine is imposed; (4) the preventive effect the fine has upon the
commission of the particular kind of crime; and (5) “in some instances” the
ability of the accused to pay the fine. Id. (citation omitted). The ability to
pay, however, is not dispositive. Id.



1      “Eighth Amendment analysis focuses on the sentence imposed for
each specific crime, not on the cumulative sentence.” State v. Berger, 212
Ariz. 473, 479, ¶ 28 (2006) (citation omitted).


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                    STATE v. GARCIA DEL CASTILLO
                          Decision of the Court

¶10            Ultimately, the Wise court held—“in light of a strong public
commitment to eradicating the use of illicit drugs”— a fine totaling $205,600
on an unemployed defendant for possession of narcotics for sale was not
disproportionate to his offenses and therefore not unconstitutionally
excessive. Id. “This is particularly true in view of the enormous profits to be
garnered from trafficking in drugs,” and “[a] large fine directed at anyone
in the drug trade is a rational attempt to cripple the industry.” Id.

¶11          We conclude Garcia Del Castillo’s fines are not
disproportionate to his convictions and therefore are not unconstitutionally
excessive. Garcia Del Castillo’s purported indigence does not outweigh the
relevant public policy considerations. As the court explained in Wise, his
fines do not “plainly and undoubtedly exceed[] any reasonable
requirements for redressing wrong.” Id. (citation omitted).

¶12            The Wise court also addressed another argument raised by
Garcia Del Castillo: that his fines amount to cruel and unusual punishment.
The court considered: “[(1)] The gravity of the offense and the harshness of
the penalty; [(2)] the severity of the penalty as compared to penalties
imposed for other criminal acts in the jurisdiction; and [(3)] the severity of
the penalty as compared to penalties imposed for the same crime in other
jurisdictions.” Id. at 577 (citing Solem v. Helm, 463 U.S. 277, 290-91 (1983)).
Noting that other states impose equally severe fines, the court observed
“the fact that the fine is tied to the value of the drugs involved is a
recognition of the large profits derived from the sale of drugs and is a
rational attempt to take the profit out of this activity.” Id. The court
concluded the defendant’s fine was not cruel and unusual. Id.

¶13           For the same reasons as those noted by this court in Wise, we
conclude Garcia Del Castillo’s fines violate neither the federal nor state
prohibitions against cruel and unusual punishment.

II.    The Trial Court Did Not Abuse Its Discretion by “Refusing” to
       Consider Garcia Del Castillo’s Ability to Pay the Fines

¶14            Garcia Del Castillo contends the trial court abused its
discretion in multiple ways by “refusing” to consider his ability to pay the
fines. First, he argues the trial court “should” have performed an explicit
assessment of the constitutionality of his fines, such as the “loose
proportionality” test mentioned by this court in Wise, see supra ¶ 9,
expressly incorporating his ability to pay as a factor. Second, Garcia Del
Castillo argues the trial court “should” have ameliorated the “harshness”
of the statutes mandating the fines by establishing a payment schedule to



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                     STATE v. GARCIA DEL CASTILLO
                           Decision of the Court

take effect upon his release, but that it “ignor[ed] his financial situation”
and “failed” to do so. We disagree.

¶15            “A trial court has broad discretion in sentencing and, if the
sentence imposed is within the statutory limits, we will not disturb the
sentence unless there is a clear abuse of discretion.” State v. Ward, 200 Ariz.
387, 389, ¶ 5 (App. 2001) (citations omitted). We may find an abuse of
discretion “when the sentencing decision is arbitrary or capricious, or when
the court fails to conduct an adequate investigation into the facts relevant
to sentencing.” Id. at ¶ 6 (citation omitted).

¶16            First, there is nothing in the record suggesting the trial court
“refused” to consider or even “ignored” Garcia Del Castillo’s financial
status. On the contrary: The trial court waived an 83 percent surcharge on
both fines entirely, suggesting Garcia Del Castillo’s purported indigence
was not ignored. Furthermore, Garcia Del Castillo does not point to any
authority requiring the trial court to explicitly engage in a “loose
proportionality” analysis expressly incorporating his financial status before
it reached its ruling on the constitutionality of his fines. Garcia Del Castillo
raised and discussed the issue of unconstitutional excessiveness with the
trial court, and the trial court ruled the fines were constitutional. It is
therefore presumed the trial court performed the proper constitutional
analyses, even if it did so implicitly. See State v. Trostle, 191 Ariz. 4, 22 (1997)
(the trial court is presumed to know the law and to apply it in making its
decisions). Accordingly, the trial court did not abuse its discretion by
declining to explicitly run through the “kind of loose proportionality test”
mentioned by the court in Wise. See supra ¶ 9.

¶17           Second, both A.R.S. § 13-3407(H) and A.R.S. § 13-3408(F)
required the trial court to impose fines on Garcia Del Castillo equaling three
times the value of the seized drugs for each count. The trial court had no
discretion to reduce those amounts as long as each separate fine remained
below the statutory cap of $150,000 pursuant to A.R.S. § 13-801(A). The trial
court did, however, maintain the discretion to determine whether Garcia
Del Castillo may pay his fines according to a payment schedule under
A.R.S. § 13-808(A).

¶18            Again, Garcia Del Castillo points to no authority requiring the
trial court to establish a payment schedule in light of his financial status.
Rather, “although we will consider ability to pay as one factor toward a
claim that a fine is disproportionate, the trial court does not have to
explicitly consider the defendant’s ability to pay when imposing a fine or
its payment schedule.” State v. Lopez, 175 Ariz. 79, 81 (App. 1993). While the


                                         6
                    STATE v. GARCIA DEL CASTILLO
                          Decision of the Court

Wise court noted that the “mandatory nature” of the statutes and the fact
that they do “not expressly provide for the consideration of a defendant’s
ability to pay are tempered by the ability of the sentencing judge to set the
schedule for payment,” 164 Ariz. at 577, nothing in Wise or the statute
requires the trial court to deploy this ability in any particular way.
Therefore, the trial court had discretion to decline to establish a payment
schedule.

¶19            The only remaining issue, as the State acknowledges, is to
clarify whether the trial court actually intended to assign a payment
schedule, but unintentionally omitted it from the judgments of fines and
fees. The trial court ruled Garcia Del Castillo’s fines would be due
“beginning,” rather than “on,” the first day of the fourth month following
his release from prison. We remand for the limited purpose of directing the
trial court to clarify whether it intended to assign a payment schedule that
begins on that date, or whether the entirety of the fines is due on that date—
either of which would be within the trial court’s discretion.

                              CONCLUSION

¶20            For the foregoing reasons, we affirm and remand for
clarification.




                           AMY M. WOOD • Clerk of the Court
                           FILED: AA




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