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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

STATE OF ARIZONA
, Appellee
,

v.

TERESA MARIE JAIME
, Appellant

.
No. 1 CA

- CR 15

- 0676

Appeal from the Superior Court in Mohave County

No. S8015 CR201401484 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 C ounsel for AppellantSTATE v. JAIME Decision of the Court

2 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 i n 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 cont aining .14 grams of methamphetamine in defendant’s jacket. D efendant maintained that someone else gave her the jac ket and the methamphetamine and pipe did not belong to her.

¶3 The state charged defendant with one count of possession of dangerous drugs, a c lass 4 felony, one count of possession of marijuana, a class 6 felony, and two counts of possession of drug paraphernal ia , class 6 felonies. After a jury trial, defendant was convicted as charged. The trial court suspended the imposition of sentencing an d 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 ha d 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 r eport, 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 moreSTATE v. JAIME Decision of the Court

3 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 foundati on 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) (ci tations 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 a n 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 financi al 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 at torney 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.STATE v. JAIME Decision of the Court

4 Arizona Revised Statutes § 13

- 901(A) provides that when granting probation to an adult defenda nt, 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 i n 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 violat ed). 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 o f 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 Ar iz. 299, 300

- 01, 8 78 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 f undamental error standard in Henderson. See Moreno

- Medrano , 218 Ariz. at 353, ¶ 13, 185 P.3d at 139 (“After H enderson , 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 inquir y” concerning her financial resources or her ability to pay fees totaling $ 1 65 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 t hat she would soon be working even more at a local ranch d oing seasonal work. On this record, t he court could have reasonably concluded that defendant could pay her probation fees and $500 in attorneys’ fees wit hout 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 feesSTATE v. JAIME Decision of the Court

5 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 t rial 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.