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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  CHALICE RENEE ZEITNER, Appellant.

                             No. 1 CA-CR 16-0668
                               FILED 9-21-2017


          Appeal from the Superior Court in Maricopa County
                       No. CR2012-006655-001
                The Honorable Pamela S. Gates, Judge
         The Honorable Annielaurie Van Wie, Judge Pro Tempore

                        AFFIRMED AS MODIFIED


                                   COUNSEL

Arizona Attorney General's Office, Phoenix
By Jason Lewis
Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix
By Jeffrey L. Force
Counsel for Appellant
                           STATE v. ZEITNER
                           Decision of the Court



                      MEMORANDUM DECISION

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


B R O W N, Judge:

¶1            Chalice Renee Zeitner appeals from her convictions and
sentences on four counts of aggravated driving while under the influence
(“DUI”). For the following reasons, we affirm the convictions and modify
the sentences.

           FACTUAL AND PROCEDURAL BACKGROUND

¶2            A jury convicted Zeitner of four counts of aggravated DUI
pursuant to Arizona Revised Statutes (“A.R.S.”) sections 28–1381(A)(1),
–1383(A)(1) (driving while impaired with a suspended license); §§ 28–
1381(A)(2), –1383(A)(1) (driving with a blood alcohol concentration of 0.08
or more with a suspended license); §§ 28–1381(A)(1), –1383(A)(2) (driving
while impaired with two prior DUI violations within 84 months); and §§
28–1381(A)(2), –1383(A)(2) (driving with a blood alcohol concentration of
0.08 or more with two prior DUI violations within 84 months).

¶3            The superior court sentenced Zeitner to concurrent
presumptive terms of 2.5 years in prison for each DUI conviction, with 488
days of presentence incarceration credit. The court also imposed the
following fines and assessments for each of the four convictions: $1,380 fine;
$250 assessment to the DUI Abatement Fund; $1,500 assessment to the
Prison Construction and Operations Fund; $1,500 assessment to the Public
Safety Equipment Fund; and a $20 time payment fee. An additional $20
probation assessment was imposed on Count 2. Zeitner timely appealed.

                               DISCUSSION

¶4            Zeitner argues the superior court committed fundamental
error by ordering her to pay the fines and assessments associated with each
of the four DUI convictions, in violation of A.R.S. § 13–116. The imposition
of an improper or otherwise unauthorized fine “renders a criminal sentence
illegal, and an illegal sentence constitutes fundamental error.” State v.
McDonagh, 232 Ariz. 247, 248-49, ¶ 7 (App. 2013). Such an error is also
prejudicial. Id.


                                      2
                            STATE v. ZEITNER
                            Decision of the Court

¶5             Section 13–116 provides that “[a]n act or omission which is
made punishable in different ways by different sections of the laws may be
punished under both, but in no event may sentences be other than
concurrent.” “A fine, and related surcharge, imposed in a criminal case is
a ‘criminal penalty’ constituting a ‘sentence’ subject to A.R.S. § 13–116's
limitation.” McDonagh, 232 Ariz. at 249, ¶ 9; see also State v. Russo, 219 Ariz.
223, 227, ¶ 15 (App. 2008) (accepting that an assessment, when deciding
whether it was unconstitutionally excessive, is “tantamount to a fine, which
is a pecuniary punishment and a sanction”). In McDonagh, a case factually
similar to the case at hand, this court held that the “assessments imposed
pursuant to the aggravated DUI statute are ‘sentences’ subject to A.R.S. §
13–116,” and the imposition of consecutive sets of DUI assessments on
convictions that arise from a single act violates § 13–116. 232 Ariz. at 248-
51, ¶¶ 2-5, 11, 18.

¶6            Based on McDonagh, the superior court fundamentally erred
by implicitly ordering consecutive sentences (the fines and assessments) on
Zeitner's four aggravated DUI convictions. The State, however, urges us to
depart from McDonagh's holding in light of State v. Jones, 235 Ariz. 501
(2014). In Jones, our supreme court noted that A.R.S. § 13–116 was in direct
conflict with § 13–705(M), which “requires that sentences imposed [for] . . .
certain dangerous crimes against children run consecutively even when the
underlying convictions arise from a single act.” 235 Ariz. at 502, ¶ 1.
Resolving the conflict in favor of § 13–705(M), the more recent statute, the
court overruled State v. Arnoldi, 176 Ariz. 236 (App. 1993), which referred
to § 13–116 as “paramount in the statutory scheme of sentencing.” Jones,
235 Ariz. at 503, ¶¶ 10-11. Accordingly, Jones clarified that § 13–116 is not
“paramount” when conflicts arise with other sentencing statutes; however,
nothing in Jones suggests that the supreme court construed § 13–116 to
mean that it should not be applied to sentences that arise from the same act
for multiple offenses like those at issue here and in McDonagh. See id. at ¶¶
8–11. And, unlike Jones, McDonagh did not involve any statute that was
directly in conflict with § 13–116.

¶7            The State also argues that A.R.S. § 28–1389, which prohibits
waiver of statutory surcharges and assessments, provides evidence of clear
legislative intent to authorize the cumulative fines and assessments
imposed here.1 But that argument was rejected in McDonagh. See 232 Ariz.
at 215-16, ¶¶ 16-17 (explaining that (1) § 28–1389 does not provide

1     Section 28–1389 states: “The court shall not waive a fine or
assessment imposed pursuant to this article or a surcharge imposed . . . for
a conviction of an offense listed in this article.”


                                       3
                            STATE v. ZEITNER
                            Decision of the Court

“evidence of clear legislative intent” to authorize the cumulative
assessments imposed and (2) § 28–1389 is inapplicable and irrelevant
because “[t]he issue here is not whether the court could waive the
Assessments under A.R.S. § 28–1389,” but “whether the court had the
power to impose the Assessments for all counts ‘consecutively’ . . . rather
than ‘concurrently’”). We are not persuaded to depart from the analysis in
McDonagh.

¶8              Here, like the circumstances in McDonagh, a single act of
driving was common to all four aggravated DUI offenses that resulted in
four separate convictions. Because the elements of the aggravated DUI
offenses could not be satisfied after subtracting the single act of driving, the
sentences (including the imposition of fines and assessments) for the four
convictions could only be imposed concurrently. See id. at 250, ¶¶ 12-13;
A.R.S. § 13–116. Thus, although the superior court could impose identical
fines and assessments against Zeitner for each of her four aggravated DUI
convictions, it could only require her to pay them once, not four times. See
id. at 251, ¶ 18.

                               CONCLUSION

¶9            Based on the foregoing, we affirm Zeitner's convictions and
the resulting sentences, but modify the sentencing minute entry to reflect
that the fines and assessments imposed on all counts are imposed
concurrently with those imposed on Count 2, resulting in a total obligation
of $4,670.




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




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