State v. Anderson

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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. MONROE ANDERSON, JR., Appellant. DIVISION ONE FILED: 08-10-2010 PHILIP G. URRY,CLERK BY: DN 1 CA-CR 09-0342 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2007-128709-001 DT The Honorable Robert L. Gottsfield, Judge SENTENCES VACATED; REMANDED FOR RESENTENCING Terry Goddard, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section and Craig W. Soland, Assistant Attorney General Attorneys for Appellee Phoenix Ballacer & Segal by Natalee Segal Phoenix Law Offices of Neal W. Bassett by Neal W. Bassett Attorneys for Appellant Phoenix B R O W N, Judge ¶1 Monroe Anderson, Jr., appeals his sentences resulting from convictions aggravated for assault, multiple counts kidnapping, and of armed misconduct robbery, involving weapons, on the ground the trial court fundamentally erred in (1) sentencing convictions him from surcharges for as a repetitive Oklahoma; each of his and offender (2) in based imposing convictions. For the on prior probation following reasons, we vacate his sentences and remand for resentencing. BACKGROUND ¶2 The facts underlying the convictions are not relevant to the issues on appeal. A jury convicted Anderson of the charged crimes, found all but the convictions for misconduct involving weapons existence of were three dangerous aggravating offenses, factors. and The found trial the court subsequently found that Anderson had three prior Oklahoma felony convictions, all of which were equivalent to Arizona felonies, and two of which qualified as historical priors under Arizona law as follows: (1) a 1991 Oklahoma conviction in CRF-91-405 for assault with a dangerous weapon which the judge concluded was equivalent Arizona class Revised three to a conviction Statutes felony, and for ( A.R.S. ) was aggravated section eligible 2 as an assault under 13-1204(A)(2), historical a prior felony notwithstanding its age because it involved use of a deadly weapon or dangerous instrument; (2) a 1990 conviction in CRF-90-686 for unlawful possession of a narcotic with intent to distribute, which the judge found was equivalent to a conviction for possession of narcotics for sale under A.R.S. § 13- 3408(A)(2), a class two felony; and (3) a 1993 conviction in CRF-93-706 for robbery by force and fear, which the judge found was equivalent to robbery under A.R.S. § 13-1902, a class four felony, and because it was the third felony, constituted historical prior conviction notwithstanding its age. an The court sentenced Anderson as a repetitive offender to a combination of concurrent and consecutive aggravated sentences totaling fortyeight years, with each of the terms enhanced by the finding of the two historical felony convictions. probation surcharge of ten dollars The court also imposed a for each conviction. Anderson timely appealed. DISCUSSION I. ¶3 Historical prior felony convictions Anderson argues that the trial court fundamentally erred in failing to conduct a side-by-side comparison of the Arizona and Oklahoma statutes in determining whether Anderson had prior felony convictions. ¶4 As an initial matter, we reject Anderson s argument that reversal is required on the grounds that [t]he trial judge 3 merely accepted the prosecutor s avowal that the elements of the Oklahoma crimes were the same as an Arizona crime, and did not conduct any analysis of the statute s [sic] himself. The trial court is required to make the determination by comparing the statutory elements of the relevant Arizona statute. foreign crime with those in the State v. Crawford, 214 Ariz. 129, 131, ¶ 7, 149 P.3d 753, 755 (2007). court knew and followed the law. We presume that the trial State v. Medrano, 185 Ariz. 192, 196, 914 P.2d 225, 229 (1996). Moreover, in this case, the court acknowledged at the start of the hearing on Anderson s prior convictions that it had a duty to find, not only that Anderson had been convicted of the Oklahoma offenses, but also that Arizona had an equivalent to the Oklahoma statute under which he was convicted. The prosecutor referred to the elements of the offense outlined in the Information in each case, and argued, Oklahoma albeit in offenses summary were fashion, comparable Arizona statutory offenses. that to the those elements of the of the specific The court subsequently concluded that the offenses were equivalent for purposes of finding the Oklahoma convictions were historical prior felony convictions. ¶5 On this record, we cannot agree with Anderson that the trial court completely abdicated its responsibility to compare the statutory elements of the Oklahoma convictions with those in the relevant Arizona statute, 4 requiring us to vacate his sentences on this basis alone. Cf. Crawford, 214 Ariz. at 132, ¶ 12, 149 P.3d at 756 (vacating sentence on the ground that the trial court erred in relying on factual basis described in the indictment to qualified as determine a prior that the prior historical federal felony conviction conviction, over defendant s objection that the federal statute could be violated by conduct that would not constitute a felony under Arizona prior felony law). ¶6 No other arguments relating to the convictions were raised by Anderson in his opening brief. his reply brief, however, Anderson argued that the In Oklahoma convictions have no Arizona statutory counterpart and therefore should not have been used to enhance his sentences. This argument has been waived because it was raised for the first time in the reply brief. See State v. Lopez, 217 Ariz. 433, 438 n.4, ¶ 17, 175 P.3d 682, 687 n.4 (App. 2008) (recognizing that issues raised for the first time in a reply brief are generally waived). ¶7 find Notwithstanding it necessary to waiver consider of the issue, whether we Anderson nonetheless should be resentenced based on a partial concession of error filed by the State. Prior to oral argument before this court, the State filed a notice of partial concession of error and citation to supplemental authority, stating 5 that its prior reliance on A.R.S. § 13-1802(A)(l), (E) (2006) (Arizona s theft statute) and A.R.S. § 13-105(12) (2010) (defining a dangerous weapon under Arizona law) was in error. The State conceded that given the strict requirements of Crawford, a remand for resentencing would be appropriate. Though we are not bound by the State s concession, State v. Sanchez, 174 Ariz. 44, 45, 846 P.2d 857, 858 (App. 1993), under these unique circumstances, and because we perceive there may be merit to the conceded error, conclude that the case must be remanded for resentencing. we On remand, if the State desires to renew its attempt to prove that the Oklahoma felonies match the Arizona felonies, then the State must establish that the Oklahoma felonies include every element that would be required to prove an enumerated Arizona offense. Crawford, 214 Ariz. at 131, ¶ 7, 149 P.3d at 755. II. ¶8 Probation Surcharge Anderson also argues that the court erred in imposing a separate ten dollar probation surcharge under A.R.S. § 12114.01(A) (Supp. 2007) on each sentence of imprisonment, asserting the statute requires a levy of a surcharge only on monetary assessments, and none was imposed in this case. The State effectively concedes that the trial court did not impose any other monetary assessment in sentencing Anderson, but argues that the statute contemplates imposition of the surcharge on each conviction, including a sentence 6 of imprisonment. We review purely legal issues such as this one de novo. Mejak v. Granville, 212 Ariz. 555, 556, ¶ 7, 136 P.3d 874, 875 (2006). Because Anderson failed to object at sentencing, we are limited to review for fundamental error only. Ariz. 561, accordingly 567, ¶ bears 19, the 115 P.3d burden of State v. Henderson, 210 601, 607 (2005). establishing Anderson that the trial court erred, that the error was fundamental, and that the error caused him prejudice. ¶9 In Id. at 568, ¶ 22, 115 P.3d at 608. interpreting statutes, we make every effort to give effect to the intent of the legislature. Mejak, 212 Ariz. at 557, ¶ 8, 136 P.3d at 876. We consider the statutory language the best indicator of that intent, and we go no further to ascertain the intent if the language of the statute is clear and unambiguous. Id. ¶10 At the time of Anderson s offense and sentence, the statute requiring a probation surcharge provided in pertinent part: A. Except as provided in § 12-269, in addition to any other penalty assessment provided by law, a probation surcharge of ten dollars shall be levied on every fine, penalty and forfeiture imposed and collected by the superior, justice and municipal courts for criminal offenses[.] A.R.S. § 12-114.01(A) (Supp. 2007). Arizona Revised Statutes § 12-269(C)(Supp. 2007) provides: C. In lieu of the surcharge 7 prescribed in § 12-114.01 and in addition to any other penalty assessment provided by law, a county with a population of two million or more persons shall levy a probation surcharge in an amount determined by the county on every fine, penalty and forfeiture imposed and collected by the superior, justice and municipal courts for criminal offenses[.] The trial court did not identify the statute under which it imposed the probation surcharge. worded identically accordingly, our with The statutes, however, are respect analysis to the applies issue whether raised, the and probation surcharge was imposed under either statute. ¶11 The statutory provision contemplates a surcharge only on a monetary fine, penalty and forfeiture. In identifying the assessment as a surcharge, the statute implicitly requires that the monetary charge be imposed assessment. This definition charge. a charge over, only is as an because above, or in addition a to surcharge addition to, another is by another See Webster s Ninth Collegiate Dictionary 1187 (1984) (defining the prefix sur as over or above, and surcharge as an additional tax, cost, or impost ). Moreover, the statute requires imposition of the probation surcharge only on those fines, penalties or forfeitures that are imposed and collected by the courts. ¶12 In context, the use of the terms surcharge and imposed and collected cannot be construed as anything other 8 than the legislature s limitation of imposition of the surcharge to only those monetary. fines, penalties and forfeitures that Had the legislature intended to impose a probation surcharge on each conviction, it could have said so. not. We are therefore interpret A.R.S. §§ 12-114.01(A) It did and 12- 269(C) as authorizing the levy of a probation surcharge only on those fines, penalties or forfeitures imposed in criminal offenses that are monetary in nature. CONCLUSION ¶13 sentence, For the including foregoing the reasons, probation we vacate surcharges, and Anderson s remand for resentencing in accordance with this decision. /s/ _________________________________ MICHAEL J. BROWN, Presiding Judge CONCURRING: /s/ ______________________________ DANIEL A. BARKER, Judge /s/ ______________________________ PHILIP HALL, Judge 9

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