IN THE



## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

STATE OF ARIZONA , Appellee ,

v.

STACEY ANN MCCARTNEY , Appellant

.

No. 1 CA

- CR 20

- 0477

Appeal from the Superior Court in Maricopa County

No. CR2016

- 030308

- 001 The Honorable Glenn A. Allen , Judge Pro Tempore

AFFIRMED IN PART; VACATED IN PART AND REMANDED

COUNSEL
Arizona Attorney General’s Office , Phoenix By Jillian B. Francis Counsel for Appellee
Maricopa County Public Defender’s Office
, Phoenix By Jennifer Roach C ounsel for Appellant

OPINION
Judge Lawrence F. Winthrop delivered the opinion of the Court, in which Presiding Judge Paul J. McMurdie and Judge Cynthia J. Bailey joined. FILED 7-1-2021STATE v. MCCARTNEY Opinion of the Court

2 W I N T H R O P , Judge:

¶1 After Stacey Ann McCartney was convicted of two drug offenses, the superior court suspended her sentences, imposed probation, and ordered her to pay various fines, fees, and assessments. She appealed her convictions and completed her probat ion before that appeal concluded. After she completed probation, but while her appeal remained pending, the superior court entered a criminal restitution order under Arizona Revised Statutes (“A.R.S.”) section 13

- 805(C)(1) that imposed interest on the unp aid balance of her payment obligations. McCartney timely appealed from the order, arguing that under Arizona Rule of Criminal Procedure (“Rule”) 31.7(a)(2), the court may not enter a criminal restitution order imposing interest on fines and other obligati ons until a defendant’s appeal is concluded. McCartney contends that to the extent § 13

- 805(C)(1) provides otherwise, it violates principles of separation of powers.
¶2 We hold that the two provisions conflict only insofar as they relate to entry of an order imposing fines and related surcharges

. Accordingly, we vacate the part of the criminal restitution order that includes McCartney’s drug offense fine and surcharge, along with any accrued interest associated with that fine and surcharge, and remand that p ortion of the order. We affirm the restitution order relate d to McCartney’s other unpaid monetary obligations and associated interest

.

FACTS AND PROCEDURAL HISTORY
¶3 A jury convicted McCartney of possession or use of dangerous drugs (methamphetamine) , a cla ss four felony, and possession of drug paraphernalia , a class six felony

. See A.R.S. §§ 13

- 3407(A)(1),

- 3415(A).
¶4 T he superior court suspended sentenc ing on both counts and placed McCartney on concurrent terms of supervised probation for two years. As a condition of her probation, t he court ordered McCartney to pay: (1) a monthly probation service fee , see A.R.S. § 13

- 901(A); (2) a time payment fee , see A.R.S. § 12

- 116; (3) a drug offense fine with a n applicable

s urcharge total ing $1,830
, see A.R.S. § § 13

- 3407(H), 12

- 116.01,

- 116.02, 16

- 954(A); (4) a probation assessment , see A.R.S. § § 12

- 114.01(A) , - 269 ; (5) criminal penalty assessment s , see A.R.S. § 12

- 116.04(A); and (6) victim rights enforcement assessment s , see A.R.S. § 12

- 116.09(A).
¶5 T his c ourt affirmed McCart ne y’s convictions and probation on appeal

. S ee S tate v. McCartney , 1 CA

- CR 1 8

- 0724, 2020 WL 1027666 ( Ariz.STATE v. MCCARTNEY Opinion of the Court

3 App. Mar

. 3, 2020) (mem. decision)

. The Arizona Supreme Court later denied McCart ney’s petition for review, and the mandate in that appeal issued December 23, 2020.
¶6 W hile McCartney’s petition for review was pending, however, she was discharged from probation. Upon discharge, McCartney still owed $1,284 in monthly probation service fees, the $1,830 drug offense fine and surcharge, $26 for the criminal penalty assessments, and $4 for the victim rights enforcement assessments

— for a combined total of $3,144. The day McCartney was discharged, the court entered a crimin al restitution order, effective October 22, 2020, on the unpaid balance of each monetary obligation, plus accruing statutory interest

. ¶7 McCartney timely appealed the criminal restitution order

. We have jurisdiction under the Arizona Constitution , article 6 , s ection 9, and A.R.S. §§ 12

- 120.21(A)(1), 13

- 4031, and 13

- 4033(A) (3)

.
ANALYSIS
¶8 McCartney argues A.R.S. § 13

- 805(C)(1) violates separation of powers 1 because it conflicts with Rule 31.7(a)(2) and therefore intrudes on our supreme c ourt’s rulemaking power

. ¶9 We review de novo the interpretation of rules and statutes

. See Duff v. Lee , 250 Ariz. 135, 138, ¶ 11 (2020) ; State v. Hansen , 215 Ariz. 287, 289, ¶ 6 (2007).
¶10 In Arizona, the legislature possesses those powers “ not expressly prohibited or granted to another branch of the government.” State ex rel. Napolitano v. Brown , 194 Ariz. 340, 342, ¶ 5 (1999) (quoting Adams v. Bolin , 74 Ariz. 269, 283 (1952)). O ur s upreme c ourt , however, has

“ exclusive constitutional auth ority to enact rules that govern procedural matters in all Arizona courts.” State ex rel. Romley v. Ballinger , 209 Ariz. 1, 2 , ¶ 6 (2004) (citing Ariz. Const. art. 6 , § 5(5)). The supreme court cannot, however, enlarge or diminish substantive rights prov ided by statute. Marianne N. v. Dep’t of Child Safety , 243 Ariz. 53, 56, ¶ 14 (2017) (citing Daou v. Harris , 139 Ariz. 353, 357

- 58 (1984)). Particularly in addressing topics, like

1 Under Article 3 of the Arizona Constitution, our state government’s three branches “shall be separate and distinct, and no one of such departments shall exercise the powers properly belonging to either of the others.”STATE v. MCCARTNEY Opinion of the Court

4 restitution, implicating criminal victims’ rights, 2 t he legislative and j udicial branches of government both have some rulemaking authority

. See Hansen , 215 Ariz. at 290

- 91, ¶ ¶ 11

- 17 ; Brown , 194 Ariz. at 343, ¶ 11 (recognizing limitations on the legislature’s rulemaking power under the Victims’ Bill of Rights)

. However, “in the event of [ an ] irreconcilable conflict between a procedural statute and a rule, the rule prevails.” Seisinger v. Siebel , 220 Ariz. 85, 89, ¶ 8 (2009).
¶11 Presented with an argument that a statute violates separation of powers, we begin by det ermining whether the statute and the rule can be harmonized. Id

. at 91, ¶ 24; Hansen , 215 Ariz. at 289, ¶¶ 7

- 8. When possible, we construe rules and statutes in a way that harmonizes the m and does not violate the constitution

. See R eadenour v. Marion Po wer Shovel , 149 Ariz. 442, 445 (1986) (citing Ariz. Downs v. Ariz. Horsemen’s Found. , 130 Ariz. 550, 554 (1981) ) ; State v. Silva , 222 Ariz. 457, 460, ¶ 13 (App. 2009)

. Only if a conflict exists will we continue our analysis to determine whether a challenged provision is substantive or procedural , the former being the legislature’s province and the latter the domain of the supreme court. Seisinger , 220 Ariz. at 91, ¶ 24; Hansen , 215 Ariz. at 289 , ¶ 9

. ¶12 A s we recently held in State v. Meinerz , 1 CA

- CR 18

- 0557, 2019 WL 2647469 ( Ariz. App. June 27, 2019) (m em. d ecision ), 3 however, there is no express conflict between the two provisions

. Because the two provisions do not irreconcilabl y conflict, A.R.S. § 13

- 805(C)(1) does not violate separation of powers.
¶13 As relevant here, § 13

- 805(C)(1) requires that “[a]t the time” a defendant completes his or her probation or sentence , the superior court shall enter “[a] criminal restitution order in favor of the s tate for the unpaid balance, if any, of any fines, costs, incarceration costs, fees, surcharges or assessments imposed.” Under § 13

- 805(E), enforcement of such an order by the state on its behalf “ includes the collection of interest that accrues at

2 See Ariz. Const. art. 2, § 2.1 (enumerati ng the V ictims’ B ill of R ights).

3 Under Rule 111(c)(1)(C) of the Ariz ona R ules of the Sup reme C our t , “[m]emorandum decisions of Arizona state courts are not precedential and such a decision may be cited only

. . . for persuasive value, but only if it was issued on or after January 1, 2015; no opinion adequately addresses the issue before the court; and the citation is not to a depublished opinion or a depublished portion of an opinion.” Meinerz , which was issued after January 1, 2015, qualifies for citation under the conditions provided in Rule 111(c)(1)(C).STATE v. MCCARTNEY Opinion of the Court

5 a rate of four percent a year

. ” 4 Rul e 31.7(a)(2) provides that “[a] sentence to pay a fine is stayed pending appeal.” By its plain language, Rule 31.7(a)(2) pertains solely to fines and makes no mention of costs, f ees, surcharges, penalties , or assessments

. See M einerz , 1 CA

- CR 18

- 0557, at *4, ¶ 18 n.4.
¶14 McCartney contend s the statute and the rule conflict, but § 13

- 805(C)(1) says nothing about ent ry of a criminal restitution order wh ile a defendant’s appeal is pend ing. Compare Hansen , 215 Ariz. at 289, ¶¶ 7

- 8 ( concluding that where a statute and rule provided “patently contradictory instructions , ” t hey could not be harmonized). Further , the statute imposes no deadline by which the superior court must issue a c riminal restitution order, although it must do so “within a reasonable time” after the defendant completes his or her probation or sentence. State v. Pinto , 179 Ariz. 593, 596 (App. 1994). McCartney argues, however, that the statute conflicts with Rule 3 1.7(a)( 2 ) because it allows interest to begin to run on a criminal restitution order before the defendant’s appeal is concluded. We agree that a criminal restitution order for payment of a fine entered before the defendant’s appeal is complete would be in consistent with Rule 31.7(a)( 2 ). Accordingly, we may harmonize § 13

- 805(C) (1) and the rule by construing the statute to allow entry of a criminal restitution order for the payment of a fine only after the defendant’s appellate proceedings have concluded

. ¶15 I n Meinerz , we confronted a situation much like that found here

— in which a defendant’s unpaid monetary sanctions were converted to a criminal restitution order while his appeal was pending

— and concluded A.R.S. § 13

- 805(C)(1) and Rule 31.7(a)(2) could be ha rmonized

. See 1 CA

- CR 18

- 0557 , at * 3

- 4, ¶ ¶ 16, 20. We f urther concluded that “[w] ithout striking down any portion of A.R.S. § 13

- 805,

. . . Rule 31.7(a)(2) requires th at entry of a [criminal restitution order] for payment of a fine must be stayed pending a defendant’s appeal.” Id

. at *4, ¶ 21. We then vacated the defendant’s criminal restitution order for the drug offense fine and surcharge, along with accrued interest, and ordered the criminal restitution or der stayed until the final mandate in the appeal was issued. 5 Meinerz , 1 CA

- CR 18

- 0557 , at *4, ¶ 23. We also held that our decision was

4 Th e interest rate may be greater in other instances. See A.R.S. §§ 13

- 805(E), 44

- 1201.

5 In Meinerz , the criminal restitution order was issued during the pendency of the defendant’s appeal from his convictions and sentences , and the defendant filed an amended notice of appeal to incorporate issues arising from the criminal restitution order. See 1 CA

- CR 18

- 0557, at * 1 , ¶ 3

.STATE v. MCCARTNEY Opinion of the Court

6 not meant to modify the portion of the criminal restitution order relat ing to the monthly probation service fee. Id

. 6
¶16 Construing § 13

- 805(C)(1) in this manner is consistent with the rule that “[o]ur rules of procedure and statutes should be harmonized wherever possible and read in conjunction with each other

. ” Phoenix of Hartford , Inc. v. Harmony Rests., Inc. , 114 Ari z. 257, 258 (App. 1977) . B ecause A.R.S. § 13

- 805(C)(1) and Rule 31.7(a)(2) can be harmonized, they do not irreconcilably conflict.
¶17 Our conclusion , therefore , requires us to vacate that portion of the superior court’s criminal restitution order for the dru g offense fine and surcharge of $1,830, along with any associated accrued interest

. Because the mandate has since issued on McCartney’s appeal of her convictions and sentences , we remand for the superior court to issue a criminal restitution order regardi ng the drug offense fine and surcharge and related interest.
¶18 The conclusion that § 13

- 805(C)(1) does not allow the superior court to enter a criminal restitution order for payment of a fine until the defendant’s appeal is complete does not apply to a crimi nal restitution order for payment of other unpaid monetary sanctions that are not fines

. See Meinerz , 1 CA

- CR 18

- 0557, at *4, ¶¶ 18 n.4, 23. Relying on State v. Dustin , 247 Ariz. 389 (App. 2019), in which we held in part that a probation assessment is a fine, see id

. at 391

- 92, ¶¶ 7

- 11, McCartney argues we should treat the other monetary assessments as fines and vacate the remainder of the court’s criminal restitution order. T he superior court did not , however, inc orporate McCartney’s probation assessment or the time payment fee in the criminal restitution order; accordingly, her argument that these constitute a fine is a non sequitur. As for the criminal penalty assessments and the victim rights enforcement assessments , McCartney provides no compelling rationale or supporting authority for why those obligations should be treated as “fines” under Rule 31.7(a)(2)

. Finally, a s for the monthly probation service fees, McCartney concedes “[c] ases defin ing the
term ‘ fine ’ within Arizona’s statutes suggest that the $65 monthly probation services fee would not be a fine, penalty or sanction because this fee is not imposed for the conviction itself, but for services provided through probation. ” See, e.g., Dustin , 247 Ariz. at 391 , ¶ 6 (discussing State v.

6 The State argues, and McCartney ultimately concedes, that the superior court may not enter a criminal restitution order that delay s accrual of interest pending completion of the def en dant ’s appeal

. State v. Lopez , 231 Ariz. 561, 562, ¶ 5 (App. 2013).STATE v. MCCARTNEY Opinion of the Court

7 Connolly , 216 Ariz. 132, 132

- 33, ¶ 3 (App. 2007) ). T his court has previously declined to treat such fees as fines, see Meinerz , 1 CA

- CR 18

- 0557 , at *4, ¶ 23 , and we decline to do so now. Accordingly, o ur decision to vacate that portion of the superior court’s criminal restitution order involving fines does not affect any other portion of the order related to McCartney’s other unpaid monetary obligations and accrued interest

.
CONCLUSION
¶19 We vacate the portion of the superior court’s criminal restitution order for the drug fine and surcharge of $1,830, along with any related accrued interest, and remand for the court to issue a criminal restitution order regarding the drug offense fine and sur charge and related interest. The portions of the criminal restitution order related to McCartney’s other unpaid monetary obligations and accruing interest are affirmed and remain intact.