State v. Dominguez

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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 ex rel. TERRY GODDARD, Plaintiff/Appellant, v. OSVALDO DOMINGUEZ and TERESA VICENTE aka TERESA DOMINGUEZ, Defendants/Appellees, and EL PAISANO S AUTO SALES, Defendant in Rem/Appellee, STATE OF ARIZONA ex rel. TERRY GODDARD, Plaintiff/Appellee, v. OSVALDO DOMINGUEZ and TERESA VICENTE aka TERESA DOMINGUEZ, Defendants/Claimants/ Appellants, and EL PAISANO S AUTO SALES, Defendant in Rem/ Claimant/Appellant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 1 CA-CV 08-0616 1 CA-CV 09-0003 (Consolidated) DIVISION ONE FILED: 02-23-2010 PHILIP G. URRY,CLERK BY: DN DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 28, ARCAP) Appeal from the Superior Court in Maricopa County Cause No. CV2004-021585 The Honorable Barry C. Schneider, Judge (Retired) The Honorable Edward O. Burke, Judge VACATED AND REMANDED Terry Goddard, Attorney General By Stephen C. Lepley, Assistant Attorney General Attorneys for Plaintiff/Appellee Phoenix Wolf & Associates, P.C. By David J. Wolf and Gabroy, Rollman & Bosse, P.C. By Lyle D. Aldridge Attorneys for Defendants/Claimants/Appellants Phoenix Tucson W I N T H R O P, Judge ¶1 of These consolidated appeals arise out of the same set facts. The State of Arizona ( State ) appeals from the superior court s August 8, 2008 amended judgment denying the State s partial motion for summary judgment, dismissing with prejudice the State s complaint for forfeiture, and releasing the majority of El Paisano s Auto Sales, Osvaldo Dominguez, and Teresa Vicente s ( Defendants ) seized assets. ¶2 Defendants appeal the superior court s minute entry order dated October 28, 2008, signed on November 21, 2008, and filed on December 3, 2008, concluding that Defendants are entitled to the proceeds of the sale of their seized personal 2 property and the collected proceeds of their seized accounts receivable, but not consequential or incidental damages. ¶3 For the following reasons, we vacate the trial court s order of dismissal and remand for further proceedings in accordance with this decision. FACTS AND PROCEDURAL HISTORY1 ¶4 These consolidated appeals arise out of the State s seizure and subsequent sale of Defendants assets, allegedly the proceeds of various racketeering offenses.2 CV 07-0330 A, at *2, ¶ 2. Before trial, both parties filed motions for summary judgment. they pled guilty to what See Dominguez, 1 CA- Defendants argued that because were ultimately designated as misdemeanor offenses, their crimes did not, as a matter of law, qualify as racketeering offenses under Arizona Revised 1 In a prior decision involving these same parties, we described some of the factual and procedural history of this case. State ex. rel. Goddard v. Dominguez, 1 CA-CV 07-0330 A (Ariz. App. Feb. 7, 2008) (mem. decision). Accordingly, we only reiterate here those facts and the updated procedural history necessary to consider the issues presented for review. 2 In its May 27, 2005 civil complaint, the State alleged that Defendants provided property and services to smugglers for profit, specifically including the sale of vehicles for use in transporting illegal immigrants and drugs[,] . . . selling such vehicles using false purchaser identifications, and creation of false liens to facilitate the recovery of the vehicles in the event seized during smuggling operations. The State also filed criminal charges against Defendants, ultimately resulting in plea agreements, as more fully discussed infra. 3 Statutes ( A.R.S. ) section 13-2301(D)(4) 2009),3 (Supp. and therefore the State s seizure and sale of Defendants assets was improper. release See id., at *3-4, ¶ 4. of assets being held They requested immediate under the seizure order and damages. ¶5 In its motion, the State argued that there was no genuine issue Defendants, by statutorily their of material fact their respective estopp[ed] from convictions. argument on the superior court Id., parties denied at regarding pleas denying *4, motions the State s ¶ and the 5. for liability convictions, actions After summary motion because and were underlying holding oral judgment, the dismissed the State s complaint, ordering the return of all property seized for forfeiture. ¶6 Id., at *5, ¶ 7. The State then moved for a new trial; however, the assigned trial judge retired before he could rule on the motion and the case was assigned to a different trial judge. *6, ¶ 9. the The newly assigned judge declined to rule on either State s summary Id., at motion judgment for on horizontal appeal. new the trial ground or Defendants that they motion constituted for a The court did, however, grant the State s motion for stay pending appeal, and entered an order dismissing 3 We cite the current version material changes have occurred. 4 of statutes in which no the State s complaint without prejudice, and denying Defendants motion for summary judgment. cross-appealed, decision. resulting On appeal, dismissal had aggrieved party, at in this court s February 7, 2008 See Dominguez, 1 CA-CV 07-0330 A. ¶7 Id., The State appealed and Defendants *7-8, been this without and ¶ court prejudice, therefore 12. determined This the dismissed court did, that, because State was the State s however, the not an appeal. find that Defendants were aggrieved, and resolved the cross-appeal on the merits, holding that, as a matter of law, the dismissal should have been with prejudice. Id., at *8-9, ¶¶ 13, 15. We remanded the matter to the superior court for entry of dismissal with prejudice. ¶8 dismissing Id., at *9-10, ¶ 15. On remand, the superior court entered a new judgment the State s complaint with prejudice and further ordered the State to release Defendants assets held under the seizure order. The State immediately filed a notice of appeal. Thereafter, the case proceeded to trial to the court on the issue of Defendants damages from the seizure, with Defendants subsequently appealing the trial court s damages ruling. 5 ¶9 This court consolidated the State s and Defendants appeals, and we have jurisdiction over both pursuant to A.R.S. §§ 12-120.21(A)(1) (2003), and 12-2101(B) and (D) (2003).4 ANALYSIS I. ¶10 Summary Judgment Proceedings and the State s Appeal5 The arising out State of presents the trial several court s issues dismissal for of review, the all State s complaint after its denial of the State s motion for partial summary judgment. On summary judgment, the State argued that Defendants criminal convictions statutorily estop[ped] them, and the assets as named in this civil forfeiture proceeding, from avoiding the consequences of the criminal convictions. 4 On November 5, 2009, we granted Defendants motion to accelerate these appeals pursuant to Arizona Rule of Civil Appellate Procedure 29. After oral argument, we determined these cases were no longer appropriate for accelerated disposition. See ARCAP 29(g). 5 The State s arguments on appeal from the entry of dismissal with prejudice are substantially identical to the arguments that the State raised on its first appeal. Defendants urge that because this court indirectly determined the merits of the State s case when it exercised jurisdiction over Defendants cross-appeal, the law of the case bars the State from bringing this appeal. See Dominguez, 1 CA-CV 07-0330 A. The law of the case doctrine denotes a principle that if an appellate court has ruled upon a legal question and remanded for further proceedings, the legal questions thus determined by the appellate court will not be differently determined on a subsequent appeal in the same case. Employers Mut. Liab. Ins. Co. v. Indus. Comm n, 115 Ariz. 439, 441, 565 P.2d 1300, 1302 (App. 1977). We are not convinced that this court reached the merits of the State s position in our previous decision such that the law of the case would apply. 6 Aside from summary judgment on liability, the State also requested entry of a forfeiture judgment consisting of property identified and determined at subsequent evidentiary hearing, and separately, a non-forfeiture civil judgment for that property. ¶11 We review the denial of a motion for summary judgment for an abuse of discretion and view all facts and reasonable inferences in the light most favorable to the non-moving party. See Sonoran Desert Investigations, Inc. v. Miller, 213 Ariz. 274, 276, ¶ 5, 141 P.3d 754, 756 (App. 2006). involve questions of law, we interpretation issues de novo. also Because they review statutory Jones v. Paniagua, 221 Ariz. 441, 444, ¶ 7, 212 P.3d 133, 136 (App. 2009). ¶12 Under Arizona s forfeiture statutes, A.R.S. §§ 13-4301 to -4315 (2001 & Supp. 2009), property is subject to forfeiture if some other statute provides for such a remedy. In re 1986 Chevrolet Corvette, 183 Ariz. 637, 639, 905 P.2d 1372, 1374 (1994). For a forfeiture application to succeed, the following are required: (1) the occurrence of an act of racketeering, see A.R.S. § 13-2301(D)(4), and (2) a link between the property to be forfeited and § 13-2314(G). the alleged racketeering conduct, see A.R.S. In re $24,000.00, 217 Ariz. 199, 201-02, ¶ 7, 171 P.3d 1240, 1242-43 (App. 2007); see also State v. Ott, 167 Ariz. 420, 427, 808 P.2d 305, 312 (App. 1990) ( [t]o prevail in the civil forfeiture proceeding, the 7 state must prove that [a defendant] committed predicate criminal acts. ). the State s forfeiture application is based In this case, on racketeering allegations,6 and therefore a predicate act of racketeering is required. ¶13 Defendants argue that the undesignated offenses that Defendants pled to, ultimately designated as misdemeanors, do not qualify as crimes punishable by imprisonment for more than one year under Arizona s definition of racketeering, the predicate offense on which the State s forfeiture action was based. A.R.S. § 13-2301(D)(4). This argument is ultimately unavailing. ¶14 First, with respect to the State s motion for partial summary judgment, A.R.S. § 13-2314(H), which applies to civil racketeering actions, provides that [a] defendant convicted in any criminal proceeding shall be precluded from subsequently denying the essential allegations of the criminal offense of which he was convicted in any civil proceeding. conviction may result from a verdict or plea[.] 2314(H). Further, a A.R.S. § 13- See also A.R.S. § 13-4310(C) (same language applied to forfeiture actions); Aetna Cas. & Sur. Co. v. Dini, 169 Ariz. 555, 557-58, 821 P.2d 216, 218-19 (App. 1991) (finding that 6 In its complaint, the State seeks forfeiture of Defendants seized assets under various racketeering and forfeiture statutes, particularly A.R.S. §§ 13-4313(A) (2001), 132314(D)(7), and 13-2314(E). 8 federal convictions could provide the predicate for racketeering charges in civil case, and A.R.S. § 13-2314 creates a statutory estoppel conclusively committed the establishing predicate crimes necessary under Arizona s RICO statutes. ). in the State s words, that the to [defendants] impose liability Accordingly, Defendants are, statutorily estop[ped] . . . from avoiding the consequences of the criminal convictions. The trial court s denial of the State s motion for partial summary judgment as far as liability for the acts underlying Defendants convictions, fails to acknowledge this fact. ¶15 of Further, because [f]orfeiture exists only by virtue statute, . . . [if] the statute does not expressly or impliedly provide for the prior conviction of the individual offender, a conviction is not a prerequisite of the forfeiture. 36 Am. Jur. 2d Forfeitures & Penalties § 19 (2009). 2301(D)(4) imprisonment requires for an more act than that one would year[,] whether the act is charged or indicted. . be . Section 13- punishable . by regardless of The statutory scheme, then, does not require an indictment, let alone a conviction, for predicate racketeering. case, a behavior behavior qualify under the definition of It follows that an acquittal or, as in this misdemeanor from to designation, qualifying as does not preclude racketeering, so predicate long as the defendants have admitted or the State has accumulated ample 9 evidence to support a predicate imprisonment for more than one year. offense punishable by In re 1996 Nissan Sentra, 201 Ariz. 114, 117, ¶ 9, 32 P.3d 39, 42 (App. 2001). ¶16 Moreover, the first trial judge incorrectly blurred an important distinction between criminal and civil actions. A civil action is separate from any underlying criminal action, and courts have recognized the difference in the relative burdens of proof in criminal and civil forfeiture actions. re Ten Thousand Ninety-Eight Dollars ($10,098.00) in In U.S. Currency, 175 Ariz. 237, 242-43, 854 P.2d 1223, 1228-29 (App. 1993) (explaining that probable cause burden for forfeiture is different from the higher beyond a reasonable doubt burden in criminal proceeding); see United States v. One Assortment of 89 Firearms, clarify 465 that U.S. 354, neither 361 (1984) collateral ( The estoppel time nor has double come to jeopardy bars a civil, remedial forfeiture proceeding initiated following an acquittal on related criminal charges ); In re 1972 Chevrolet Monte Carlo, 117 Ariz. 461, 463, 573 P.2d 535, 537 (App. 1977) (permitting forfeiture of car containing marijuana seeds and debris, but not useable amount, even though criminal offense could not be proved); see also A.R.S. § 13-2314(L) ( Civil remedies . . . are supplemental and not mutually exclusive. ). Although Defendants pled to crimes that were ultimately designated misdemeanor offenses, neither party was sentenced to 10 jail or prison for the class six undesignated offenses.7 It is well-established that until designation, the court may treat an offense as a felony for all purposes. State v. Benson, 176 Ariz. 281, 285, 860 P.2d 1334, 1338 (App. 1993) (referring to a former version of A.R.S. § 13-702(H)). If treated as a felony, the maximum sentence for a class six offense is a year and a half - obviously more than the one year minimum required. See A.R.S. that the felony is § 13-702 presumptive (Supp. sentence of 2009). one year Defendants for a argue class six determinative for purposes of the punishable by language of A.R.S. § 13-2301(D)(4). We disagree. If the legislature intended for the presumptive sentence to be determinative of whether a crime is punishable by more than one year, then it could have so specified. Further, when the court took Defendants pleas, both Dominguez and Vicente acknowledged that their crimes carried possible sentences of up to two years, the aggravated term for a class six felony. 7 Osvaldo Dominguez pled guilty to attempted hindering prosecution in the first degree, a class six undesignated offense. A.R.S. § 13-2512 (Supp. 2009). At sentencing, the court designated the offense a misdemeanor, suspended the imposition of a sentence, and ordered probation. Teresa Vicente pled guilty to solicitation to commit forgery, also a class six undesignated offense. A.R.S. §§ 13-1002 (2001), 13-2002 (2001). The court suspended imposition of a sentence and ordered probation. At the conclusion of the probation period, the court designated her offense a misdemeanor. 11 ¶17 At oral argument and in its ruling on the State s motion, the denying trial the motion court for stated that summary the effect judgment judgment in favor of Defendants. of would be an order summary The court then denied the State s motion and dismissed the State s forfeiture complaint. The trial court, like Defendants on appeal, relied heavily on Lafarga v. INS, 170 F.3d 1213 (9th Cir. 1999). This reliance was misplaced. ¶18 Lafarga involved an attempt by the federal Immigration and Naturalization Service to deny voluntary departure8 to the defendant, Lafarga. Id. at 1215. Lafarga argued that the petty offense exception found in the federal statute allowed her to seek voluntary departure. The immigration judge held that Lafarga was not eligible for voluntary departure because she had previously pled guilty to the class six undesignated offense of theft under Arizona law. Id. Lafarga was sentenced to eighteen months probation, which she successfully completed, and the offense was designated a misdemeanor.9 Id. at 1214. The Ninth Circuit reversed the ruling, and held that because the 8 Voluntary departure permits an otherwise removable individual to depart the country at her own expense in order to avoid a removal order and its consequences. See 8 U.S.C. § 1229c (2006). 9 The same event progression applies to Defendant Vicente. Defendant Dominguez s crime was designated a misdemeanor at sentencing. 12 offense was ultimately designated a misdemeanor, the defendant qualified for the petty offense exception because the maximum possible sentence for a misdemeanor under state law was six months. Id. at 1216. We find Lafarga neither controlling nor relevant to our resolution of the issue. distinguishable in that it did not First, Lafarga is involve allegations or statutory forfeiture analysis. racketeering Second, the petty offense exception was expressly defined as existing when the maximum penalty possible for the crime of which the alien was convicted . . . did not exceed imprisonment for one year and . . . the alien was not sentenced to a term of imprisonment in excess of 6 months. Id. at 1215 1182(a)(2)(A)(ii)(II)) (emphasis added). the petty occurred offense at exception sentencing, thus whereas (citing U.S.C. § The applicability of hinged the 8 on what racketeering actually statutes at issue in this case only require that the underlying behavior be punishable by more than one year of imprisonment. ¶19 For the foregoing reasons, we find that the trial court in part improperly denied the State s motion for partial summary judgment complaint. and also erred in dismissing the State s We remand the case for a determination of whether there is a sufficient link or nexus between the racketeering conduct of which Defendants have been convicted and the property the State seeks to forfeit, and the allowable extent of such 13 forfeiture, as well as the amount of fees, expenses, and costs due at the trial level. II. ¶20 trial See A.R.S. § 13-2314(D)(5). Damages Trial and Defendants Appeal As our decision reinstates the State s complaint, the court s premature. hearing on and calculation of damages was Accordingly, we need not decide Defendants appeal from the trial court s damages ruling. CONCLUSION ¶21 For the foregoing reasons, we vacate the trial court s denial of the State s motion for partial summary judgment and dismissal of the State s complaint, and remand for further proceedings in accordance with this decision. _____________/S/_____________ LAWRENCE F. WINTHROP, Judge CONCURRING: _____________/S/___________________ MAURICE PORTLEY, Presiding Judge ____________/S/___________________ ANN A. SCOTT TIMMER, Chief Judge 14

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