State v. Millan-Leal

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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. JESUS FRANCISCO MILLAN-LEAL, Appellant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 04-01-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CR 09-0054 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2007-007930-001 DT The Honorable Michael D. Jones, Judge CONVICTIONS AFFIRMED; SENTENCES VACATED AND REMANDED Terry Goddard, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section And Katia Mehu, Assistant Attorney General Attorneys for Appellee Phoenix Bruce Peterson, Office of the Legal Advocate By Thomas J. Dennis, Deputy Legal Advocate Attorneys for Appellant Phoenix B R O W N, Judge ¶1 Jesus Francisco Millan-Leal ( Appellant ) appeals from his convictions and sentences on one count of possession of narcotic drugs and paraphernalia. one count Appellant of challenges possession only his of drug sentences, asserting that the trial court was required to impose probation rather than constituted Statutes incarceration first and ( A.R.S. ) for these second section convictions strikes 13-901.01 under (2001) because Arizona and they Revised the State failed to allege a prior violent crime before trial as required under A.R.S. § 13-604.04 (2001). 1 For the following reasons, we find that the State was required to allege a violent offense prior to trial pursuant to § 13-604.04 in order to disqualify Appellant from Accordingly, we mandatory vacate probation Appellant s under sentences § and 13-901.01. remand for resentencing. BACKGROUND ¶2 In November 2007, Appellant was charged by indictment with one count of possession of a narcotic drug for sale, a class 2 felony, and one count paraphernalia, a class 6 felony. 1 of possession of drug He was sentenced together with Effective January 1, 2009, A.R.S. § 13-604.04 was renumbered as § 13-901.03. 2008 Ariz. Sess. Laws, ch. 301, § 19 (2d Reg. Sess.). For ease of reference in this decision, we will refer to the statute as it was at the time of the offense. 2 three other entered criminal prior cases, trial, 2 to entered after trial. 3 one and involving two a involving plea plea agreement agreements In relation to the sentences for the narcotics offenses at issue here, defense counsel argued that A.R.S. § 13-901.01(A) (Proposition 200) applied, and Appellant should therefore be sentenced only to probationary terms to be served consecutively to his prison sentences in the other cases. The trial court disagreed, finding that automatic probation was precluded under § 13-901.01(B) because Appellant was being sentenced contemporaneously in one of the plea agreement cases for a dangerous kidnapping offense. As a result, Appellant was sentenced to the presumptive terms of two and one-half years on count one and one year on count two, to be served concurrently with one another but consecutively to the other sentences imposed. ¶3 Appellant filed a timely appeal. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, 2 Appellant plead guilty to one count of unlawful use of means of transportation, a class 6 undesignated felony, a nondangerous and non-repetitive offense, in CR 2006-134087-001 and was sentenced to the presumptive term of one year. 3 Appellant plead guilty in CR 2007-163569-001 DT to one count of misconduct involving weapons, a class 4 felony, a nondangerous and non-repetitive offense; and one count of narcotic drugs for sale, a class 2 felony, also non-dangerous and nonrepetitive. He also plead guilty in CR 2008-006031-001 DT to one count of kidnapping, a class 2 dangerous felony. 3 and A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031 (2001), -4033(A) (Supp. 2009). DISCUSSION ¶4 Appellant argues that the trial court erred in sentencing him to a term of imprisonment rather than mandatory probation because the State failed to meet its statutory obligation to allege that he had a committed a violent crime. 4 The State counters that a disqualifying prior conviction under § 13-901(B) could be found by the court even if the State did not file such allegations in the indictment or otherwise provide notice that such a conviction would be used to disqualify the defendant from mandatory statutory construction; decision de novo. probation. thus, we These review the are issues trial of court s State v. Reinhardt, 208 Ariz. 271, 273, ¶ 7, 92 P.3d 901, 903 (App. 2004). ¶5 possession Whether a defendant who has been convicted of personal and use of controlled substances is entitled to mandatory probation is governed by A.R.S. § 13-901.01, which reads in pertinent part: A. Notwithstanding any law to the contrary, any person who is convicted of the personal possession or use of a controlled substance...is eligible for probation. The court shall suspend the imposition or 4 Appellant does not dispute that the kidnapping charge at issue in CR 2008-006031-001 DT is a violent crime pursuant to A.R.S. § 13-604.04. 4 execution of sentence person on probation. and place such A number of exceptions to mandatory probation are enumerated thereunder, including the exception at issue here relating to prior convictions for violent offenses. The relevant section reads: B. Any person who has been convicted of or indicted for a violent crime as defined in § 13-604.04 is not eligible for probation as provided for in this section but instead shall be sentenced pursuant to the other provisions of chapter 34 of this title. A.R.S. § 13-901.01(B) (emphasis added). Pursuant to § 13- 604.04, an allegation that the defendant committed a violent crime must be alleged prior to trial. 5 ¶6 this After case, the trial and State immediately requested prior that Appellant s plea agreements be followed. the to sentencing in stipulations in The State also noted that one of the pleas was for kidnapping, a dangerous offense, and that [i]f the Court is inclined to not give [Appellant] supervised probation, we would ask for a consecutive term in the 5 A.R.S. § 13-604.04(A) reads: the allegation that the defendant committed a violent crime shall be charged in the indictment or information and admitted or found by the court. The court shall allow the allegation that the defendant committed a violent crime at any time before the date the case is actually tried unless the allegation is filed fewer than twenty days before the case is actually tried and the court finds on the record that the defendant was in fact prejudiced by the untimely filing and states the reasons for these findings. 5 department of corrections. Defense counsel responded that at the time of the conviction for the narcotics offenses, there was no prior conviction for the kidnapping charge; therefore, § 13901.01(A) applied and Appellant should receive mandatory probation for the narcotics offenses, rather than incarceration. The trial judge concluded that Appellant mandatory probation under § 13-901.01(A). was ineligible for The judge reasoned that he did [not] think as a matter of law [he could] ignore the dangerous offense that [Appellant] has [] plead guilty to and for which he is today before the Court for sentencing. As such, the judge determined that he could not place Appellant on probation. ¶7 Appellant relies on State v. Benak to assert that the court erred in using his conviction for kidnapping to preclude mandatory probation under § 13-901.01(A) because the State failed to provide notice pursuant to § 13-604.04 that it planned to use the kidnapping conviction for such purposes. See 199 Ariz. 333, 336, ¶ 10, 18 P.3d 127, 130 (App. 2001) (finding that the State must provide notice pursuant to [§] 13-604.04 if it intends to preclude a sentence of probation on the grounds that a defendant has been convicted of a violent crime ). In Benak, the had State alleged before trial nondangerous felony convictions. at 128. After trial, the that the defendant four 199 Ariz. at 334, ¶ 3, 18 P.3d court 6 found that one of the convictions was a class 3 aggravated assault, a violent crime. Id. As a result, the court sentenced the defendant to a term of incarceration pursuant to § 13-901.01(B) rather than probation pursuant to § 13-901.01(A). Id. at 334-35, ¶¶ 3, 6, 18 P.3d at 128-29. On appeal, we held that fundamental fairness and due process demanded the State allege before trial that the defendant committed a violent offense in order to disqualify him from mandatory probation under § 13-901.01(B). Id. at 336-37, ¶ 14, 18 P.3d at 130-31. intended to provide We explained that this requirement was a defendant with the opportunity to accurately ascertain the potential punishment he faces should he elect to exercise his right to trial. Id. at 337, ¶ 14, 18 P.3d at 131. ¶8 Here, the State contends that Benak does not control and instead relies on Raney v. Lindberg to assert that the trial court was not constrained by the mandatory notice provisions of § 13-604.04 because § 13-901.01(B) specifically directs the court to impose a sentence pursuant to the provisions of Chapter 34 of the criminal statutes in cases where the defendant has been convicted of a violent offense. 76 P.3d 867, 871 (App. 2003). 206 Ariz. 193, 197, ¶ 11, The State also asserts that under Raney the trial court may determine as a matter of law whether a defendant is entitled to be sentenced pursuant to § 13-901.01 notwithstanding any failure on the part of the State to make 7 such allegations prior to trial. Id. (recognizing that whether a defendant is entitled to be sentenced pursuant to [§] 13901.01 is a matter of law to be decided by the court ). We find the State s reliance on Raney misplaced. ¶9 In that case, Raney was charged with possession of a dangerous drug and possession of drug paraphernalia, among other things. Id. at 195, ¶ 2, 76 P.3d at 869. The State alleged that he also had a historical prior conviction for solicitation to possess a dangerous drug. Id. A plea agreement was entered in which Raney agreed to plead guilty to possession of drug paraphernalia on the condition that the State dismiss the other counts and the enhancement allegations. Id. Notwithstanding this agreement, at sentencing the court imposed both probation and a term of 280 days in county jail because this was Raney s second Proposition 200 drug offense. P.3d at 869-70. incarcerated Id. at 195-96, ¶¶ 3-4, 76 On appeal, Raney argued that he could not be under § 13-901.01 unless the proved the prior drug-related offenses. P.3d at 870. State We rejected that argument, finding that § 13- 98, ¶¶ 12-14, 76 P.3d at 871-72. could and Id. at 196, ¶ 7, 76 901.01(F) and (G) did not require such allegations. court alleged determine the Id. at 197- We also held that the trial existence of relevant convictions at the time of sentencing as a matter of law. at 198, ¶ 16, 76 P.3d at 872. 8 prior Id. ¶10 The case before us is distinguishable from Raney on at least one significant point. were § 13-901.01(F) and In Raney, the statutes at issue (G). Those subsections state in pertinent part: F. If a person is convicted a second time of personal possession or use of a controlled substance as defined in § 362501, the court may include additional conditions of probation[.] G. A person who has been convicted three times of personal possession or use of a controlled substance as defined in § 362501 is not eligible for probation[.] Subsections F and G both relate to convictions for prior drugrelated offenses. Conversely, the statute at issue here, § 13- 901.01(B), relates to convictions for prior violent crimes. particular import is the reference to § 13-604.04. Of Section 13- 901.01(B) specifically states that [a]ny person who has been convicted of or section 13-604.04 added.) indicted for a violent crime as defined in is not eligible for probation[.] (Emphasis Under § 13-604.04, an allegation that the defendant committed a violent crime shall be charged in the indictment or information and admitted or found by the court. A.R.S. § 13604.04(A) (emphasis added); see Benak, 199 Ariz. at 337, ¶ 14, 18 P.3d at 131 (holding that A.R.S. [§] 13-604.04 applies to A.R.S. [§] 13-901.01 and requires the State to allege before trial that a defendant has committed a violent crime in order to 9 exclude a defendant from probation eligibility pursuant to [§] 13-901.01(B) ). The statutes at issue in Raney neither mention § 13-604.04 nor impose a similar requirement that the State allege prior convictions before trial. This is an important distinction that makes Raney inapposite in this case. As such, we find that Benak controls here and conclude that the State was required to allege the kidnapping charge pursuant to § 13-604.04 before trial in order for it to be used to disqualify Appellant from mandatory probation. ¶11 The record before us reflects that the State did not allege the kidnapping charge 6 as required under § 13-604.04. The original indictment for the narcotics charges did not include an allegation occurred a of the year kidnapping later. charge Nonetheless, because the the State kidnapping could have amended the indictment to include the kidnapping charge. The State amended the indictment in December 2007 to add aggravating circumstances relating to the other plea cases, but it failed to further amend the indictment to include an allegation of the pending kidnapping charge. The State also failed to include the kidnapping charge in the joint pretrial statement even though 6 Under A.R.S. § 13-901.01, a person may have been either convicted or indicted for a violent crime as defined in A.R.S. § 13-604.04. Here, because the State does not even suggest that it complied with the notice requirements, we need not address any distinctions between a conviction and an indictment; in either case, Appellant was not given notice of increased punishment. 10 other sentencing enhancements were alleged. Our review of the record reflects that the State did not raise the kidnapping charge at all as a possible enhancement factor in relation to the narcotics offenses until the sentencing hearing. Accordingly, we find that the State did not provide the required pretrial allegation of a violent crime pursuant to §§ 13- 901.01(B) and 13-604.04 and the trial court therefore erred in sentencing Appellant to incarceration instead of probation. CONCLUSION ¶12 For convictions the but foregoing we vacate reasons, his we affirm sentences and Appellant s remand for resentencing in accordance with A.R.S. § 13-901.01(A). /s/ _________________________________ MICHAEL J. BROWN, Judge CONCURRING: /s/ ______________________________ PATRICK IRVINE, Presiding Judge /s/ ______________________________ DONN KESSLER, Judge 11

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