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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     TERESA MARIE JAIME, Appellant.

                             No. 1 CA-CR 15-0676
                               FILED 8-30-2016


           Appeal from the Superior Court in Mohave County
                        No. S8015CR201401484
                 The Honorable Lee F. Jantzen, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael F. Valenzuela
Counsel for Appellee

Mohave County Legal Advocate’s Office, Kingman
By Jill L. Evans
Counsel for Appellant
                            STATE v. JAIME
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Peter B. Swann and Judge Donn Kessler joined.


T H O M P S O N, Judge:

¶1            Teresa Marie Jaime (defendant) appeals from the trial court’s
sentencing order requiring her to pay a total of $500.00 in attorneys’ fees
and $65.00 per month in probation fees. For the following reasons, we
affirm the decision of the trial court.

              FACTUAL AND PROCEDURAL HISTORY

¶2              A Mohave County Sherriff’s deputy stopped defendant for a
traffic violation in January 2014. The deputy saw a marijuana pipe in plain
view in defendant’s driver’s compartment. Defendant admitted that the
pipe contained marijuana and gave the deputy consent to search her
vehicle. The deputy then found a methamphetamine pipe containing .14
grams of methamphetamine in defendant’s jacket. Defendant maintained
that someone else gave her the jacket and the methamphetamine and pipe
did not belong to her.

¶3            The state charged defendant with one count of possession of
dangerous drugs, a class 4 felony, one count of possession of marijuana, a
class 6 felony, and two counts of possession of drug paraphernalia, class 6
felonies. After a jury trial, defendant was convicted as charged. The trial
court suspended the imposition of sentencing and placed defendant on
probation for one year. The court ordered her to pay $500.00 in attorneys’
fees and $65.00 in probation fees.1 Defendant timely appealed. We have



1      At sentencing, the trial court had a presentence investigation report
from the probation department indicating that defendant earned $300 per
month doing landscaping, cutting wood, and doing odd jobs. When the
court asked defendant if she had any corrections or additions to make to
the report, she indicated that, with regard to her employment, she would
be starting to cut wood for a local ranch because “the wood season is upon
us.” There is nothing in the record, however, indicating how much more



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                            STATE v. JAIME
                           Decision of the Court

jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) §§ 12-
120.21(A)(1) (2016), 13-4031 (2010), and -4033(A) (2010).

                              DISCUSSION

¶4             Defendant raises one issue on appeal: whether the trial court
committed fundamental error by requiring her to pay $500.00 in attorneys’
fees and $65.00 per month in probation fees without making findings as to
her ability to pay.2 Because defendant did not object to the order imposing
fees, we review for fundamental error. See State v. Moreno-Medrano, 218
Ariz. 349, 352, ¶ 7, 185 P.3d 135, 138 (App. 2008). 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.” State v.
Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005) (citations
omitted). Under this standard of review, a defendant must show 1) the
existence of fundamental error, and 2) the error caused the defendant
prejudice. Id. at ¶ 20.

¶5           Arizona Revised Statutes (A.R.S.) § 11-584(C) provides that
the court may require an indigent defendant who is represented by the
public defender’s office to repay the county “a reasonable amount” towards
the cost of the defendant’s legal services. Arizona Rule of Criminal
Procedure 6.7(d) provides, in relevant part:

             If in determining that a person is indigent . . .
             the court finds that such person has financial
             resources which enable him or her to offset in
             part the costs of the legal services to be
             provided, the court shall order him or her to pay
             to the appointed attorney or the county . . . such
             amount as it finds he or she is able to pay
             without incurring substantial hardship to
             himself or herself or to his or her family.




defendant would earn per month during wood-cutting season or for how
long.

2     The court ordered defendant to pay the attorneys’ fees and her
assessments other than the monthly probation fee at a rate of $100.00 per
month.


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                             STATE v. JAIME
                            Decision of the Court

Arizona Revised Statutes § 13-901(A) provides that when granting
probation to an adult defendant, the court shall assess a monthly probation
fee of $65.00 per month, unless the court assesses a lesser fee after
determining the inability of the probationer to pay the fee.

¶6              Defendant acknowledges that in State v. Moreno-Medrano,
Division Two of this court held that a court’s imposition of fees pursuant to
section 11-584 without making the findings provided for in Rule 6.7(d) was
not fundamental error. See 218 Ariz. 349, 353, ¶ 13, 185 P.3d 135, 139 (App.
2008), review denied. She urges us to instead follow this court’s earlier
decision in State v. Lopez, 175 Ariz. 79, 82, 853 P.2d 1126, 1129 (App. 1993)
(court’s failure to make express findings was fundamental error because
defendant’s constitutional right to counsel was violated). We agree with
the Moreno-Medrano court that it is not fundamental error for a trial court to
fail to make a finding that a defendant is able to pay a portion of the cost of
his or her legal services. A court’s failure to make such findings is not an
error of such magnitude that a defendant’s right to a fair trial is affected.
Nor is it one of those “rare” circumstances which would deprive a
defendant of a right essential to his or her defense. See Henderson, 210 Ariz.
at 567, ¶ 19, 115 P.3d at 607. “Although findings of fact and conclusions of
law are certainly helpful on appellate review, they do not go to the
foundation of the case” and a lack of findings does not deprive a party of a
fair hearing. Trantor v. Fredrikson, 179 Ariz. 299, 300-01, 878 P.2d 657, 658-
59 (1994). We decline defendant’s suggestion that we follow Lopez, a case
decided before our supreme court clarified Arizona’s fundamental error
standard in Henderson. See Moreno-Medrano, 218 Ariz. at 353, ¶ 13, 185 P.3d
at 139 (“After Henderson, we conclude this part of Lopez is no longer correct
and find that the imposition of the fees without the finding was not
fundamental error.”).

¶7            Further, we cannot agree with defendant’s conclusion that the
trial court “failed to conduct any inquiry” concerning her financial
resources or her ability to pay fees totaling $165 per month and that she was
prejudiced by the lack of express factual findings. The court had before it
defendant’s presentence report indicating that she was working part-time,
and she informed the court at sentencing that she would soon be working
even more at a local ranch doing seasonal work. On this record, the court
could have reasonably concluded that defendant could pay her probation
fees and $500 in attorneys’ fees without substantial hardship.

¶8            Defendant argues that the imposition of fees could subject her
to incarceration if she fails to pay them. As the state points out, defendant
can only become incarcerated if she willfully chooses not to pay the fees


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                            STATE v. JAIME
                           Decision of the Court

and was able to do so. Nor could she be held in contempt if she was unable
to pay the fees. Nothing in this decision precludes defendant from arguing
that if she fails to pay the fees, she was unable to pay them.

                              CONCLUSION

¶9            Because defendant did not object to the trial court’s order
imposing fees without explicit factual findings and because the imposition
of fees was not fundamental error, we affirm the decision of the trial court.




                          Amy M. Wood • Clerk of the court
                          FILED: AA




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