State v. White

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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. ) ) HENRY WHITE, JR., ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 02/07/2012 RUTH A. WILLINGHAM, CLERK BY: DLL No. 1 CA-CR 10-0813 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-106973-001DT The Honorable Sam J. Myers, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Division And Adriana M. Zick, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Terry Reid, Deputy Public Defender Attorneys for Appellant Phoenix S W A N N, Judge ¶1 Henry Following conviction by a jury and a trial on priors, White, aggravated Jr., term of ( Defendant ) imprisonment was sentenced following the to a trial slightly court s finding of two historical priors based on two Florida aggravated assault convictions from the 1990s. Defendant argues that the trial court erred in finding that one of the Florida offenses would have constituted a felony under Arizona law, and that it was a historical prior felony forever allegeable because of its dangerous nature.1 Because a reading of the relevant Florida statute and the charging document reveals that the use of a deadly weapon Defendant s or 1991 dangerous conviction, instrument we affirm was the essential conviction to and sentence. FACTS AND PROCEDURAL HISTORY ¶2 After a jury trial, Defendant was convicted of Cruelty to Animals, a Class 6 felony, for severely beating and injuring his puppy. Before trial, the state filed an allegation of five historical prior convictions, which it later amended. On the date set for sentencing, the court held a trial on priors during which the state submitted a penitentiary packet ( pen pack ) that included a fingerprint card and documents from the Florida Department of Corrections and the United States District Court for the Northern prior convictions. District of Florida evidencing Defendant s The court received testimony from a Phoenix Police Department detective who fingerprinted Defendant after 1 Under A.R.S. § 13-105(22), convictions for dangerous offenses constitute historical prior felony convictions, and are colloquially known as forever priors. 2 the jury trial and from a forensic scientist who compared the prints the detective took from Defendant to the prints in the pen pack. Of the five convictions documented, the state argued that two of the four Florida convictions -- a 1991 Aggravated Assault Without a Firearm conviction and a 1992 Aggravated Assault With a Weapon conviction -- would qualify as forever priors in Arizona and that the other two Florida convictions did not qualify as Arizona felonies. Defense counsel conceded that it does appear that the elements of the aggravated assault in Florida do match up and that both convictions were forever priors. ¶3 At the court s request, the state further explained that the two aggravated assaults constituted forever priors because they involve[d] the threatening exhibition of a dangerous instrument or deadly weapon as required by A.R.S. § 13-105.22(ii). The court further inquired how this applied to the 1991 without a firearm conviction and the state explained that the factual basis was that the incident involved a knife and [i]t wouldn t have been an aggravated assault under Florida law if it hadn t involved that knife. ¶4 The court found that Defendant had two historical prior convictions and that these convictions were analogous to dangerous crimes under Arizona law and therefore qualify as forever priors that would be used to enhance the sentence. 3 The court then heard from defense counsel, who asked the court to consider a mitigated sentence because of Defendant s ties to the community, his status as a veteran, and his remorsefulness -- not for committing the crime but because one of his dogs was taken from him and the other died. objection to the court s finding Defense counsel made no that both of the Florida aggravated assault convictions were allegeable forever priors and argued instead that his client should receive the mitigated sentence under the two prior category. ¶5 The trial court found both the aggravating factor of Defendant s criminal history and the mitigating factors of his status as a veteran, and his efforts to reform following the arrests in the 1990s. The court then sentenced Defendant to a slightly aggravated term of four years in prison. ¶6 Defendant timely filed a pro per notice of appeal in addition to the timely notice of appeal filed on his behalf by the Public Defender.2 We have jurisdiction under Article 6, Section Arizona 9, of the Constitution; A.R.S. § 12- 120.21(A)(1); and A.R.S. §§ 13-4031 and -4033. 2 Defendant also filed a Motion for Modification of Sentence on the ground that the trial court improperly considered his prior convictions because of their age; the trial court denied the motion. 4 DISCUSSION ¶7 he Defendant does not challenge the judgment of guilt -only appeals the trial court s finding that he had two, rather than one, historical prior convictions for the purpose of sentence enhancement.3 Specifically, Defendant asserts that the trial court improperly found that the 1991 Florida aggravated assault conviction was a historical prior conviction, because the court relied on the factual basis of the crime to determine both that the offense would have been a felony under Arizona law and that it was a forever prior under Arizona law. He further argues that this error resulted in prejudice because he received an illegally enhanced sentence. Because the determination whether a foreign conviction is a felony under Arizona law is an issue of law, our review of the trial court s determination is de novo. State v. Smith, 219 Ariz. 132, 136, ¶ 20, 194 P.3d 399, 403 (2008) (citation omitted). We will affirm a trial court s ruling if the result was legally correct for any reason. State v. Perez, 141 Ariz. 459, 464, 687 P.2d 1214, 1219 (1984). ¶8 Defendant failed to object to the trial court s finding and use of the 1991 Florida conviction as a forever prior and we therefore review for fundamental error. 3 Smith, 219 Defendant does not argue on appeal that the trial court erred in finding that the 1992 Florida aggravated assault conviction was an allegeable Arizona prior conviction and therefore concedes that he is at minimum eligible for sentencing as a category two repetitive offender under A.R.S. § 13-703(I). 5 Ariz. at 136, ¶ 20, 194 P.3d at 403. To prevail under fundamental error review, a defendant must establish: (1) that fundamental error exists ; and (2) that the error in his case caused him prejudice. State v. Henderson, 210 Ariz. 561, 567, ¶ 20, 115 P.3d 601, 607 (2005). [I]mproper use of a prior foreign conviction to enhance a prison sentence goes to the foundation of a defendant s right to receive a valid and legal sentence and therefore such improper constitutes fundamental error. use, where it exists, Smith, 219 Ariz. at 136, ¶ 22, 194 P.3d at 403. I. THE 1991 CONVICTION WAS PROPERLY USED TO ENHANCE DEFENDANT S SENTENCE. A.R.S. § 13-7034 details Arizona s sentencing scheme ¶9 for repetitive offenders -- those defendants who have one or more provable historical prior felony convictions. 703(M) provides enhancement that purposes a foreign when the conviction conduct can underlying Section 13be used the for foreign conviction if committed in this state would be punishable as a felony. See also State v. Thompson, 186 Ariz. 529, 530, 924 P.2d 1048, 1049 (App. 1996). If a foreign felony conviction passes this test, it may be used for sentencing enhancement as a 4 Portions of the Arizona criminal sentencing code were renumbered in 2008, including § 13-604 which was renumbered to § 13-703 without substantive change to the text. To aid future reference, we refer to the renumbered statutes as they are presently numbered. 6 historical prior felony regardless of the age of the prior conviction -- i.e., it is a forever prior -- if it qualifies under A.R.S. § 13-105(22)(a). A. The 1990 Offense Would Have Been a Felony Under Arizona Law. ¶10 To repetitive use a foreign offender felony scheme, sentencing conviction the under sentencing the court must determine that the defendant was convicted of a crime that would have constituted a felony under Arizona law. Thompson, 186 Ariz. at 530, 924 P.2d at 1049; see also Smith, 219 Ariz. at 134, ¶ 10, 194 P.3d at 401 (The sentencing court must first conclude that the foreign conviction includes every element that would be required (internal to quotations prove and an enumerated citations Arizona omitted). offense. ) For this comparison to result in use of the prior foreign conviction for enhancement, strict conformity must exist between the elements of the foreign felony and the elements of an Arizona felony. State v. Clough, 171 Ariz. 217, 219, 829 P.2d 1263, 1265 (App. 1992). ¶11 Defendant concedes that the conduct that would constitute the predicate offense of assault in Florida in 1990 would also constitute Arizona in 1990. the differences the predicate We agree. between the offense of assault in However, Defendant asserts that elements 7 used to aggravate an assault in Florida versus Arizona -- and the absence of a designated sub-subsection of statute under which Defendant pled -- create an ambiguity regarding which section of the aggravated assault statute Defendant pled to, and that the trial court improperly resolved evidence. The the state ambiguity argues that considered the charging document. the without a firearm by considering the trial documentary court properly The state further argues that qualifier to the aggravated assault charge to which Defendant ultimately pled does not create an unresolvable specifies ambiguity that because Defendant pled the to judgment Count I of and conviction the charging document s Count I specifies use or threatened use of a deadly weapon. ¶12 In Thompson, we held that: [T]he State may qualify an out-of-state conviction as an enhancing prior felony by establishing that the defendant was convicted under a particular subsection of a foreign statute, if that subsection encompasses only conduct that would constitute a felony in Arizona. 186 Ariz. at 532, 924 P.2d at 1051. considered the defendant s two Using this framework, we second-degree burglary convictions under Colorado Revised Statute § 18-4-203(2). Id. As to the first conviction, we noted that the judgment stated that the conviction was under Count I of the charging document and that the charging document 8 expressly identified the subsection of the statute by noting the burglary was with the objective of theft of a controlled substance (which we determined would constitute an Arizona felony) rather than of a dwelling. Id. The sentencing court s consideration of the judgment and the charging document in combination to pinpoint the exact subsection of the statute under which the defendant pled was proper because it remained a legal analysis, not a factual one. ¶13 We do meaningfully Thompson. from not see those how the circumstances qualifying the first here differ conviction in In 1990, Florida Statute ( F.S. ) § 784.021 provided that an assault was aggravated when it occurred in one of two ways: under subsection (1)(a), with a deadly weapon without intent to kill; or (1)(b), with the intent to commit a felony. The judgment of conviction here identifies that Defendant s guilty plea in case number 90-889 is to Count I, Aggravated Assault Without a Firearm under F.S. §§ 784.021/775.087,5 a class 3 felony. Count I of the information for case number 90-889 5 Though F.S. § 775.087 is referenced both in the information and in the judgment, it is irrelevant to the crime with which Defendant was charged and pled. Perez v. State, 431 So. 2d 274, 275 (Fla. Dist. Ct. App. 1983) (explaining that aggravated assault with a deadly weapon is an enhanced penalty crime; the use of a weapon makes it a more serious crime than simple assault; and thus section 775.087(1) does not enhance such a crime further). Section 775.087(2) also does not apply, and therefore is not helpful in distinguishing what subsection Defendant pled to, because it only applies when a defendant possessed a firearm or destructive device. Id. 9 charges Defendant with an assault in which he possess[ed] and threaten[ed] to use a deadly weapon, to wit: a knife and/or a pistol charging in violation document of here F.S. can §§ 784.021 properly be and used 775.087. to narrow The the foreign conviction to a particular subsection of the statute [here, (1)(a)] that served as the basis of the foreign conviction, not to establish the factual nature of the prior conviction. State v. Crawford, 214 Ariz. 129, 132, ¶ 11, 149 P.3d 753, 756 (2007) (citation omitted). The state s reference to the unsworn affidavit providing the factual basis for the crime does not make the use of the charging document to define the conviction improper -- we disregard the affidavit, and rely only on the charging document. ¶14 Further, Defendant s plea to Aggravated Assault Without a Firearm does not create an ambiguity regarding the nature of his conviction. The Without a Firearm qualifier prevents the conclusion that the deadly weapon was a firearm, but it does not prohibit the conclusion that he used a deadly weapon. Moreover, the qualifier does not lead to a conclusion that may he have pled under subsection (1)(b), because the charging document contains no allegation that Defendant intended to commit a felony. ¶15 Defendant concedes that the elements of Florida s 1990 aggravated assault statute § 784.021(1)(a) appear[] to comport 10 with Arizona s 1990 aggravated assault statute § 13-1204(A)(2). Section 784.021(1)(a) defines an aggravated assault as assault [w]ith a deadly weapon without intent to kill. an In 1990, A.R.S. § 13-1204(A)(2) defined an aggravated assault as an assault with instrument. and Florida strictly the use of a deadly weapon or dangerous As noted above, the elements of the 1990 Arizona statutes conform. for A the predicate comparison of the offense of assault aggravated assault statutes easily demonstrates that the elements of the aggravated offense strictly conform as well. ¶16 the Accordingly, the sentencing court properly found that offense underlying the 1991 Florida conviction for Aggravated Assault Without a Firearm would have been a felony under 1990 Arizona law. B. ¶17 The 1991 Conviction Qualifies as a Forever Prior. Defendant argues that the 1991 conviction cannot qualify as a forever prior because the trial court could only conclude that Defendant s 1991 conviction involved a deadly weapon by engaging in an impermissible factual inquiry. We disagree. ¶18 Under A.R.S. § 13-105(22)(a)(ii), a prior conviction may be used for sentence enhancement, regardless of its age, if the prior offense [i]nvolved a dangerous offense. Section 13- 105(13) defines a dangerous offense as an offense involving the 11 discharge, use or threatening exhibition of a deadly weapon or dangerous instrument or the intentional or knowing infliction of serious physical injury include anything on another designed for person. lethal Deadly use and weapons dangerous instruments include anything that under the circumstances in which it is used, attempted to be used, or threatened to be used is readily capable of causing death or serious physical injury. A.R.S. §§ 13-105(15), (12). ¶19 1990 Florida metallic knuckles, law defined slungshot, a billie, weapon tear as gas any gun, dirk, chemical weapon or device, or any other deadly weapon except a firearm or a common pocketknife. Fl. Stat. Ann. § 790.001 (1990). Whether an object used as a weapon in an assault is a deadly weapon is a factual question to be resolved by the finder of facts at trial and is to be determined upon consideration of its likelihood to produce death or great bodily injury. State v. Nixon, 295 So. 2d 121, 122 (Fla. Dist. Ct. App. 1974) (citations omitted). McCoy v. State further explains that in Florida, a weapon is a deadly weapon if it is used or threatened to be used in a way likely to cause death or great bodily harm. 493 So. 2d 1093, 1095 (Fla. Dist. Ct. App. 1986). ¶20 Defendant aggravated As discussed pled to assault above, the subsection statute (1)(a) which 12 record demonstrates that of the 1990 Florida requires use of deadly a weapon. We therefore need not engage in a factual inquiry to determine what the actual object was to conclude that whatever he used, he used it in a manner that made it a deadly weapon as a matter of law. See State v. Ault, 157 Ariz. 516, 521, 759 P.2d 1320, 1325 (1988) (holding that the elements that a jury must have found to convict a defendant under foreign law support the conclusion that the same elements would be satisfied in the comparable Arizona law). Comparing the deadly weapon definition in the Florida case law with A.R.S. § 13-105(12) s definition of a dangerous instrument readily demonstrates that the two definitions are substantially identical. ¶21 A conviction for aggravated assault with a deadly weapon under 1990 Florida law necessarily requires a finding that the instrument the defendant used was deadly because of the manner in which determined death or upon great it was used, consideration bodily injury. and of that its its deadliness likelihood Nixon, 295 So. to 2d is produce at 122. Accordingly, it was proper for the trial court to conclude that the 1991 conviction was a forever prior and therefore the trial court properly used the 1991 Florida Aggravated Assault Without a Firearm conviction to sentence Defendant as a category three repetitive offender with two historical convictions under A.R.S. § 13-703(C) and (J). 13 prior felony CONCLUSION ¶22 finding Because we find that the trial court did not err in that the 1991 conviction was a historical prior conviction under Arizona law, we need not reach the issue of prejudice, and therefore affirm the Defendant s conviction and sentence. /s/ ___________________________________ PETER B. SWANN, Presiding Judge CONCURRING: /s/ ____________________________________ MICHAEL J. BROWN, Judge /s/ ____________________________________ JON W. THOMPSON, Judge 14

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