State v. Collins

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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, ) ) Respondent, ) ) v. ) ) DAVID LEE COLLINS, ) ) Petitioner. ) ) __________________________________) Petitioner David Lee DIVISION ONE FILED: 05/15/2012 RUTH A. WILLINGHAM, CLERK BY: sls 1 CA-CR 10-0604 PRPC DEPARTMENT A Mohave County Superior Court No. CR2008-0346 DECISION ORDER Collins filed a petition for review from the dismissal of his petition for post-conviction relief. Presiding Judge Maurice Portley and Judges Ann A. Scott Timmer and Andrew W. Gould have considered his petition, and based on the following, grant review and relief. Collins offender pled registration guilty to failure requirements, a to class comply 4 with sex felony, and stalking, a class 5 felony, with one historical prior felony conviction. See Ariz. Rev. Stat. ("A.R.S.") sections 13-3824(A) (West 2008) (failure to comply with sex offender registration requirements) and 13-2923(A)(1), (B) (West 2008) (stalking). He entered into a plea agreement with the State, and the agreement 1 CA-CR 10-0604 PRPC Page 2 provided that the trial court would sentence him to an aggregate term of ten years' imprisonment. The agreement, however, gave the court discretion as to how it would determine the ten-year aggregate sentence. 1 The court sentenced Collins to an exceptionally aggravated term of 6.5 years' imprisonment for failure to comply with sex offender registration requirements and an exceptionally aggravated, consecutive term of 3.5 years for stalking. The court the identified two aggravating factors to support exceptionally aggravated sentences: Collins's "prior record" and the fact that he was on parole when he committed the offenses. Collins filed a timely petition for post-conviction relief, and argued that his sentences were illegal because the 1 In order to impose a ten-year aggregate sentence, the court would have to impose an "exceptionally" aggravated sentence for at least one of the counts pursuant to A.R.S. § 13-702.02(C) (West 2008) (repealed Jan. 1, 2009) and order that the sentences be served consecutively. See A.R.S. § 13-604(A) (West 2008) (maximum sentences for class 4 and 5 felonies with one historical prior felony conviction are six and three years, respectively); A.R.S. § 13-702.01(C) (West 2008) (maximum sentences for class 4 and 5 felonies may be exceptionally aggravated to 7.5 and 3.75 years, respectively). And, in order to impose an exceptionally aggravated sentence pursuant to § 13-702.01(C), the court must find that at least two of the aggravating factors listed in A.R.S. § 13-702(C) (West 2008) apply. 1 CA-CR 10-0604 PRPC Page 3 court considered aggravating a of the two He correctly sentence under aggravating court § may impose 13-702.01 factors found an only by impose one aggravated sentence pursuant to § 13-702.01(C). 2 a to as exceptionally that necessary factor an noted factors "catch-all" if the exceptionally both court of are aggravated the necessary specifically enumerated in § 13-702(C); the court, however, may not impose an exceptionally aggravated sentence if one of the two necessary aggravating factors comes under the "catch-all" provision in § 13-702(C). State v. Perrin, 222 Ariz. 375, 378, ¶ 9, 214 P.3d 1016, 1019 (App. 2009). 3 A defendant's parole status is not one of the specifically enumerated aggravating factors listed in § 2 At the time Collins was sentenced, the "catch-all" provision identified as an aggravating factor "[a]ny other factor that the state alleges is relevant to the defendant's character or background or to the nature or circumstances of the crime. A.R.S. § 13-702(C)(24). 3 Perrin was issued just twenty-five days before Collins was sentenced. The record reveals that neither Collins nor the State informed the court of the Perrin opinion at sentencing. Even though Perrin addressed an earlier version of the statutory "catch-all" provision that permitted the trial court to consider any [other] factors it deem[ed] appropriate to the ends of justice, 222 Ariz. at 377, ¶ 4, 214 P.3d at 1018 (citation and internal quotation marks omitted), the Perrin analysis applies to the later version of the statutory "catch-all" provision at issue here. See State v. Zinsmeyer, 222 Ariz. 612, 622-23, ¶¶ 24-25, 218 P.3d 1069, 1079-80 (App. 2009) (citations omitted). 1 CA-CR 10-0604 PRPC Page 4 13-702(C). It is, as the court later acknowledged, a factor that necessarily fell within the "catch-all" provision of § 13702(C)(24). 4 Despite recognizing that Collins s parole status fell under the statutory catch-all provision, the court summarily dismissed his petition for post-conviction relief. The court stated, however, that it would impose the same sentences even if we ordered the court to resentence Collins on remand. The court indicated it that if Collins had to be resentenced, would consider his prior felony convictions within ten years of the offenses in this case as separate and distinct aggravating factors pursuant to § 13-702(C)(11). We exercise our discretion and grant review of the petition. 4 Because Perrin applies, the court could not use The trial court later determined that the identification of Collins's "prior record" as an aggravating factor was not sufficient to identify it as a specifically enumerated factor in § 13-702(C)(11) (felony conviction within the ten years immediately preceding the date of the offense ), but was sufficient to identify it as a "catch-all" factor pursuant to § 13-702(C)(24). In his petition, however, Collins only argued that his parole status was within the catch-all provision. Because we find that Collins's parole status was not a specifically enumerated aggravating factor found in § 13-702(C), we need not address whether the identification of his "prior record" as an aggravating factor was sufficient to identify it as a specifically enumerated factor pursuant to § 13-702(C)(11). 1 CA-CR 10-0604 PRPC Page 5 Collins s parole status as one of the two necessary aggravating factors to impose exceptionally aggravated sentences because it was a "catch-all" factor. 612, 622-23, ¶¶ 24-25, (citations omitted). See State v. Zinsmeyer, 222 Ariz. 218 P.3d 1069, 1079-80 (App. 2009) Accordingly, we grant relief by vacating the aggregate sentences imposed and remanding for resentencing. Collins next asserts that we must set aside the plea agreement. remand. We disagree. The trial court may sentence him on "Double jeopardy principles generally do not apply to sentencing proceedings." State v. Ring, 204 Ariz. 534, 548, ¶ 27, 65 P.3d 915, 929 (2003) (citation omitted); accord Monge v. California, 524 U.S. 727, 728 (1998) (citation omitted). illegal sentence is no sentence at all." An State v. Pyeatt, 135 Ariz. 141, 143, 659 P.2d 1286, 1288 (App. 1982) (quoting State v. Ortiz, 104 Ariz. 493, 495, 455 P.2d 971, 973 (1969)). Therefore, when a sentence has been vacated, sentencing begins anew. State v. Thomas, 142 Ariz. 201, 204, 688 P.2d 1093, 1096 (App. 1984). Finally, the trial court asserted that it intends to resentence Collins according to his plea agreement. We do not disagree with the statement but note that the court cannot find 1 CA-CR 10-0604 PRPC Page 6 that two prior historical aggravating factors. defendant has more felonies constitute two separate We have previously stated that where a than one prior felony conviction that qualifies as an aggravating factor pursuant to § 13-702(C)(11), those multiple, qualifying single aggravating factor. felony convictions constitute a State v. Provenzino, 221 Ariz. 364, 368, ¶ 15, 212 P.3d 56, 60 (App. 2009) (citations omitted). Consequently, distinct the court aggravating cannot factors use on the two priors resentencing to as two impose exceptionally aggravated sentences. Based on the foregoing, we grant review, grant relief by vacating Collins s sentences, and remand for proceedings consistent with this Order. /s/ ________________________________ MAURICE PORTLEY, Presiding Judge

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