State v. Richardson

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. JERRY LEE RICHARDSON, Appellant. ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 12/07/2010 RUTH WILLINGHAM, ACTING CLERK BY: GH 1 CA-CR 09-0578 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2009-109933-001 DT The Honorable Lisa Ann VandenBerg, Judge Pro Tempore AFFIRMED AS MODIFIED Phoenix Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section And Sherri Tolar Rollison, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Karen M. Noble, Deputy Public Defender Attorneys for Appellant Phoenix K E S S L E R, Presiding Judge ¶1 Jerry Lee Richardson ( Defendant ) conviction and sentence for resisting arrest. appeals from his For the reasons that follow, we affirm Defendant s conviction. We also affirm Defendant s sentence as modified. FACTUAL AND PROCEDURAL HISTORY ¶2 The State filed a direct complaint against Defendant for resisting arrest in violation of Arizona Revised Statutes ( A.R.S. ) section 13-2508(A)(1) (2010). Before State designated the crime as a misdemeanor. trial, the The superior court held a bench trial. ¶3 A Phoenix police officer ( Officer ) initiated a traffic stop after Defendant made a right turn at a red light in violation of a posted sign prohibiting such maneuvers. See A.R.S. § 28-645(A)(3)(b) (2010) (prohibiting right-on-red turns when a prohibitory sign is erected at the intersection). Officer followed Defendant briefly, activated his lights, and pulled Defendant over. Officer dismounted his police motorcycle and approached Defendant s vehicle in full uniform. ¶4 When he reached the vehicle, Officer requested Defendant s driver s license, vehicle registration, and proof of insurance. Officer informed Defendant that he was being pulled over for turning right-on-red in violation of the prohibitory sign. Defendant stated that he did not make the turn on red and that Officer should not have stopped him. Officer continued to request Defendant s driver s license and Defendant continued to refuse. 2 ¶5 Defendant then opened Officer s knees in the process. remain in his vehicle. his vehicle striking Officer ordered Defendant to Defendant notwithstanding Officer s order. door, exited the vehicle Officer then ordered Defendant to move to the rear of the vehicle, which he did. Defendant called 9-1-1 and paced between the vehicle and the curb. ¶6 While Defendant was pacing, he veered from his path and intentionally bumped into Officer. Officer pushed Defendant against Defendant s vehicle and informed him that he was under arrest. ¶7 Defendant told Officer that he was not under arrest. Officer began trying to handcuff Defendant. Defendant pulled his hands and arms away from Officer as Officer attempted to handcuff him. Defendant also began sliding his torso several feet back and forth along the edge of the vehicle. Officer continued trying to grab Defendant s arm but could not handcuff him because Defendant continued to pull his arm away. ¶8 Officer then moved Defendant onto the ground by placing his arms around Defendant s chest and causing them to fall to the ground together. Officer pulled one of Defendant s arms out from underneath him and placed a handcuff around one wrist. Officer was not able to place the second handcuff on Defendant s wrist until an additional officer arrived to assist. ¶9 arrest The and superior imposed a court convicted sentence 3 of Defendant three months of resisting unsupervised probation. a Along with the probation, the superior court imposed probation fee of sixty-five dollars filed a timely notice of appeal. per month. Defendant This Court has jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1) (2003) and 13-4032(6) (2010). ANALYSIS ¶10 On appeal, Defendant contends 1) the superior court erroneously evidence convicted was him insufficient of to resisting show that arrest he had because the satisfied the force requirement in A.R.S. § 13-2508(A)(1) and 2) the superior court erroneously imposed a sixty-five dollar per month probation fee. I. Substantial Evidence Supports the Conviction ¶11 On appeal, [w]e view the facts and all reasonable inferences therefrom in the light most favorable to sustaining the convictions. State v. Powers, 200 Ariz. 123, 124, ¶ 2, 23 P.3d 668, omitted). 669 (App. 2001) (citation and internal quotations We review the superior court s interpretation of a statute de novo. State v. Noceo, 223 Ariz. 222, 224, ¶ 3, 221 P.3d 1036, 1038 (App. 2009). A person commits resisting arrest by intentionally preventing or attempting to prevent a person reasonably known to him to be a peace officer, acting under color of such peace officer s official authority, from effecting an arrest by . . . [u]sing or threatening to use physical force 4 against the peace officer or another. A.R.S. § 13-2508(A)(1). Physical force means force used upon or directed toward the body of another person. A.R.S. § 13-105(31) (2010). Against means [i]n the opposite direction to the course of anything or counter to . 1 The Compact Edition of the Oxford English Dictionary 173 (1971); see also A.R.S. § 1-213 (2002) (mandating that undefined words be construed according to the common and approved use of language ). ¶12 that The superior court had sufficient evidence to conclude Defendant used force against Officer. When Officer attempted to handcuff Defendant, Defendant pulled his arm away from Officer. While Officer had vehicle, Defendant shook his torso. Defendant pinned against a Defendant and Officer were in bodily contact while this occurred. Once Officer brought Defendant to the ground, Defendant continued to pull his arm away from Officer, preventing Officer from handcuffing Defendant without backup. ¶13 Defendant s motion was a force. The force was upon Officer, as Defendant and Officer were consistently in physical contact during the struggle. The physical force was against Officer, as defendant pulled, squirmed away from Officer, and tried to extricate himself from Officer s controlling grip. Having used force upon Officer in opposition to Officer s effort 5 to effect an arrest, Defendant satisfied the condition in subsection A(1). ¶14 Our conclusion that Defendant violated A.R.S. § 13- 2508(A)(1) is consistent with State v. Lee. ¶ 11, 176 P.3d 712, 715 (App. 2008). defendant violated A.R.S. § 217 Ariz. 514, 517, Lee determined that a 13-2508(A)(1) by, inter alia, pulling her arms away from officers and physically resisting the placement of handcuffs. 1 Id. Defendant here also pulled his arms away from Officer and physically resisted the placement of handcuffs. ¶15 Defendant contends that he did not use physical force against Officer because his behavior towards Officer was not assaultive. We disagree. The plain language of the relevant statutes shows that assault and resisting arrest are separate offenses proscribing distinct culpable acts. Janson ex rel. Janson v. Christensen, 167 Ariz. 470, 471, 808 P.2d 1222, 1223 (1991) (applying plain meaning rule). Assault criminalizes injuring another person, causing a person to fear injury, or touching another person. arrest under A.R.S. § A.R.S. § 13-1203(A) (2010). 13-2508(A)(1) criminalizes Resisting the act preventing an arrest through the use or threat of force. 1 of The The Lee defendant additionally kicked, which Defendant did not do. Id. However, Defendant violently thrashed his torso from side to side. 6 statute does not depend on injury, apprehension of injury, or even voluntary touching. P.3d at 715. Lee, 217 Ariz. at 517, ¶¶ 12, 13, 176 Cases like this one demonstrate the distinction. Defendant never voluntarily touched or injured Officer. grabbed Defendant and pinned him to a car. forceful movements contact, are language. 2008) the away from culpable Officer, act The Defendant s efforts under Officer the to plain prevent statutory See Clement v. State, 248 S.W.3d 791, 797 (Tex. App. (upholding resisting arrest conviction under forceful resistance theory when defendant struggled physically and pulled away from officer but made no voluntary contact with officer because [a] person can forcefully resist an arrest without successfully making physical contact with the officer ). Based on the plain meaning rule, we decline to judicially impose the elements of assault upon the crime of resisting arrest. ¶16 Additionally, requiring that behavior be assaultive to constitute resisting arrest would render A.R.S. § 13-2508(A)(1) superfluous, because A.R.S. criminalize assaultive §§ 13-1203 behavior and towards -1204 police already officers. Construing A.R.S. § 13-2508(A)(1) to only criminalize conduct that also constitutes an aggravated assault violates requirement that we not render a statute superfluous. Nacchio, 225 Ariz. 171, 175-76, (2010). 7 ¶ 22, 236 P.3d the Grand v. 398, 402-03 ¶17 Defendant also contends that we should construe A.R.S. § 13-2805(A)(1) as being subject to an unwritten exception for minor scuffling which Defendant similarly worded Hawaii statute. contends exists We disagree. under a Those who use physical force against police officers attempting to arrest them are not entitled to engage in minor scuffling whether it is usual or unusual in the context of an arrest. at 517, ¶ 12, 176 P.2d at 715 (citation Lee, 217 Ariz. omitted). Lee considered the same comment to Hawaii s resisting arrest statute that Defendant relies on and rejected the contention that a person has a privilege to scuffle with an arresting officer. Id. at ¶ 13. ¶18 Additionally, Defendant contends that the evidence is insufficient to show that he resisted arrest because the conduct constituted merely avoiding arrest. We disagree. When a defendant uses physical force against an officer to prevent an arrest, it makes no difference that the force is minor and may be perceived as merely avoiding arrest. P.3d at 716. Id. at 518, ¶ 15, 176 The case Defendant relies on to support his claim, State v. Womack, involved no use of force. P.2d 609 (App. 1992). In Womack, the defendant merely fled from an officer and eventually surrendered. P.2d at 610-11, 615. 174 Ariz. 108, 847 Id. at 109-10, 114, 847 Womack involved no force and does not 8 control the result of a case where the defendant used some force, no matter how little force was involved. ¶19 Defendant also cites several cases upholding convictions for resisting arrest, apparently making an implied argument that his conviction should be overturned because his use of force was in some way different than the force present in those cases. We disagree. First, our application of statute comes directly from the wording of the statute. the Based on the words used and their meanings, we find that the superior court had adequate evidence to convict Defendant. The facts of prior cases upholding a conviction do not restrict this Court to upholding convictions in identical or similar scenarios. ¶20 Additionally, the citations proffered by support our decision to affirm Defendant s conviction. discussed supra ¶¶ 14, 15, 17, 18. Defendant Lee was State v. Stroud upheld a conviction for resisting arrest when the defendant continued to struggle with an officer after the officer grabbed him. 207 Ariz. 476, 480-81, ¶ 17, 88 P.3d 190, 194-95 (App. 2004) vacated on other grounds 209 Ariz. 410, 103 P.3d 912 defendant kicked and pushed the officer s arm. supports our decision for two reasons. (2005). Id. The Stroud First, like Lee, Stroud rejected a defendant s invocation of Womack for the proposition that minor resisting. scuffling is merely avoiding arrest Id. at 480-81, ¶¶ 15-17, 88 P.3d at 194-95. 9 and not Second, although the type of force was somewhat different, Stroud affirmed a conviction when the defendant refused to submit to an arrest and continued to physically struggle physical contact with an officer. Id. at ¶ 17. refused and while to submit to an arrest in direct Here, Defendant continued to physically struggle while in direct physical contact with Officer. Stroud supports our decision to uphold Defendant s conviction. ¶21 Similarly, State v. Sorkhabi supports our decision to affirm Defendant s (App. 2002). conviction. 202 Ariz. for the purpose of determining subject to state or tribal jurisdiction. P.3d at 1074. [a] threatening 46 P.3d 1071 Sorkhabi considered whether or not a crime was victimless [i]f 450, whether it was Id. at 453, ¶ 11, 46 Sorkhabi cites Womack for the proposition that defendant to use prevent[s] physical arrest force or without other using means creating substantial risk of physical injury, he avoids arrest. at 452, ¶ 9, 46 P.3d at 1073. or Id. It does not control the result of this case, because the superior court in this case correctly concluded that Defendant used physical force against Officer. Sorkhabi additionally held that the defendant s conduct was squarely within the provisions of A.R.S. § 13-2508(A) simply because he struggled with two officers. 10, 46 P.3d at 1073. Defendant s 10 202 Ariz. at 452, ¶ altercation with Officer clearly constitutes a struggle. Sorkhabi also supports our decision to affirm. ¶22 Defendant engaged in a physical struggle with Officer. He pulled his arms away from the Officer s handcuffs. his torso while in contact with Officer. He shook This conduct inhibited Officer s efforts to gain control of him during an arrest and is sufficient to sustain a conviction for resisting arrest. 2 II. Defendant s Probation Fee is Valid as Modified ¶23 Defendant also contends that he received an illegal sentence 3 because 1) the superior court imposed a probation fee when he was sentenced to unsupervised probation, and 2) the superior court imposed a sixty-five dollar fee notwithstanding that the statute in effect at the time Defendant committed his crime prescribed a fifty dollar fee. We hold that Defendant is obligated to pay a probation fee but the superior court imposed a fee in excess of the statutory amount. Therefore, we affirm Defendant s sentence as modified. 2 Because we affirm Defendant s conviction based on A.R.S. § 132508(A)(1), we need not address the State s contention that the conviction for violating A.R.S. § 13-2508(A)(1) may be upheld because some evidence suggested that he may have committed an offense he was neither charged with nor convicted of. 3 Although Defendant failed to raise this issue in the superior court, an illegal sentence is fundamental error. State v. Mason, 225 Ariz. 323, 328, ¶ 10, 238 P.3d 134, 139 (App. 2010) (citation omitted). 11 ¶24 When granting probation to an adult the court, as a condition of probation, shall assess a monthly fee. § 13-901(A) (2010). A.R.S. Defendant contends that this fee applies only to defendants sentenced to supervised probation. However, that limitation is relevant only if a defendant is sentenced in a justice or municipal court. the superior court and was Id. Defendant was sentenced in subject to a monthly fee for unsupervised probation. ¶25 Defendant contends that he is entitled to a fifty dollar monthly probation fee rather than a sixty-five dollar fee. We agree. The law amending A.R.S. § 13-901(A) to increase the probation fee contained no emergency clause. Sess. Laws Ch. 5 (1st Sp. Sess.). 2009 Ariz. Therefore, it took effect on May 2, 2009, ninety days after the first special session of the Legislature ended. Ariz. Const. art. 4, pt. 1 § 1(3). It was not in effect when Defendant committed his crime in February 2009. Defendant is entitled to pay the probation fee in effect on the date he committed his offense. ¶26 Probation is a form of criminal punishment. State v. Mendivil, 121 Ariz. 600, 602, 592 P.2d 1256, 1258 (1979). probation fee is part of criminal punishment. 223 Ariz. 555, 566, ¶ 35, 225 P.3d 1131, A State v. Payne, 1142 (App. 2009) (citing State v. Castranova, 221 Ariz. 549, 551, ¶¶ 8-10, 212 P.3d 887, 889 (App. 2009) depublished 224 Ariz. 121, 228 P.3d 12 113 (2010)). When the penalty for an offense is prescribed by one law and altered by a subsequent law, the penalty of such second law shall not be inflicted for a breach of the law committed before the second took effect, but the offender shall be punished committed. Defendant under 4 the law in force when A.R.S. § 1-246 (2002). committed his offense the offense was The law in force when called for a fifty dollar monthly probation fee, therefore Defendant is entitled to the benefit of the lower fee. ¶27 The State contends that the probation fee is appropriate because the relevant statute mandates a fee not less than fifty dollars. We disagree. We do not view the language not less than as conferring unfettered discretion on the superior court statutory amount. to impose any probation fee over the The language the State relies on comes from the following sentence: When granting probation to an adult the court, as a condition of probation, shall assess a monthly fee of not less than fifty dollars unless, after determining the 4 Additionally, unless a statute expressly states that it is retroactive, we must apply it prospectively only. A.R.S. § 1244 (2002); Garcia v. Browning, 214 Ariz. 250, 252, ¶ 7, 151 P.3d 533, 535 (2007). When a statute alters a criminal punishment, including the terms of probation, the operative date for retroactivity purposes is the date of the offense. O Brien v. Escher, 204 Ariz. 459, 462, ¶ 10, 65 P.3d 107, 110 (App. 2003). The lack of an express retroactivity provision supports our decision to apply the prior statute. 13 inability of the probationer to pay the fee, the court assesses a lesser fee. A.R.S. § 13-901(A) (Supp. 2008). The language not less than precedes a phrase allowing the court to grant a lesser fee in limited circumstances. The language not less than does not confer any express power to charge a fee greater than that enumerated. discretion to charge less. It merely restricts the court s Therefore, we hold that the superior court erred by charging a probation fee greater than the one called for by the statute in effect at the time Defendant was sentenced. ¶28 This Court has the power to modify an illegal sentence to comply with the appropriate statutory limits. 4037(A) (2010). A.R.S. § 13- Accordingly, we modify Defendant s probation fee to be fifty dollars per month. CONCLUSION ¶29 For the foregoing reasons, we affirm Defendant s conviction and sentence as modified. /s/ DONN KESSLER, Presiding Judge CONCURRING: /s/ DANIEL A. BARKER, Judge /s/ JON W. THOMPSON, Judge 14

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