State v. Wright

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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. JERRY WILLIAM WRIGHT, Appellant. ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 05/31/2011 RUTH A. WILLINGHAM, CLERK BY: GH 1 CA-CR 10-0132 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Mohave County Cause No. CR 2007-1781 The Honorable Rick A. Williams, Judge AFFIRMED Thomas C. Horne, Attorney General Phoenix By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Melissa M. Swearingen, Assistant Attorney General Attorneys for Appellee Jill L. Evans, Mohave County Appellate Defender Attorney for Appellant Kingman N O R R I S, Judge ¶1 Jerry William Wright possession of drug paraphernalia. improperly enhanced his appeals his sentence for He argues the superior court sentence by using out-of-state convictions that did not qualify as historical prior felony convictions ( historical priors ) and by finding he committed the offense while on parole. We disagree with both arguments. First, because Wright failed to object to the State s evidence regarding the out-of-state convictions, our review is for fundamental error and he has failed to demonstrate fundamental error and prejudice. sufficient evidence Second, because the superior court had to reasonably infer Wright committed the offense while on parole, it did not abuse its discretion in making this finding. FACTS AND PROCEDURAL BACKGROUND ¶2 The State charged Wright with possession of drug paraphernalia, a class six felony, after a police officer found a glass pipe with methamphetamine residue November 27, 2007 ( present offense ). alleged Wright had historical in his pocket on Before trial, the State priors, Ariz. Rev. Stat. ( A.R.S. ) § 13-604(W)(2)(c) (Supp. 2007), 1 and had committed the present offense while on parole. The historical priors included 1 A.R.S. § 13-604.02 (2001). Receiving Stolen Property, The Arizona Legislature amended and renumbered the Arizona criminal sentencing code, see 2008 Ariz. Sess. Laws, ch. 301, §§ 1-120 (2d Reg. Sess.), effective from and after December 31, 2008. Id. § 120. In this decision, we use the statutes in effect at the time Wright committed the present offense. 2 committed on May 1, 2001, 2 in Amador County, California ( Amador prior ); Felony Vehicle Theft, committed in 2001 in El Dorado County, California ( El Dorado prior ); and Petit Theft with Prior, committed in 2000 in El Dorado County, California ( Petit Theft prior ). On the day of trial, Wright objected to a lack of proof the Petit Theft prior was actually a felony but did not otherwise object to the filing of the enhancement allegations. ¶3 A jury convicted Wright of the present offense. The State submitted Wright s California pen pack -- a packet of certified court and prison records -- to the court as evidence of his historical priors and parole status. The superior court found Wright had committed at least two historical priors, subjecting him to enhanced sentences, A.R.S. § 13-604(C), 3 and 2 The State initially alleged Wright committed this historical prior on April 14, 2001, but official documentation later submitted to the superior court showed he committed the offense on May 1, 2001. 3 Section 13-604(C) read in relevant part: [A] person . . . who stands convicted of a class 4, 5 or 6 felony . . . and who has two or more historical prior felony convictions shall be sentenced to imprisonment as prescribed in this subsection . . . : . . . . Felony Minimum Presumptive . . . . 3 Maximum found, over Wright s objection, he was on parole when he committed the present offense, prohibiting him from receiving a sentence less than the presumptive. court sentenced years. Wright Wright to timely a A.R.S. § 13-604.02. presumptive appealed, and prison we have term of The 3.75 jurisdiction pursuant to A.R.S. § 13-4033(A)(1) (2001). DISCUSSION ¶4 As an initial matter, we note the standard of review on appeal for Wright s historical-prior arguments is fundamental error because he did not raise them in the superior court. State v. Smith, 219 Ariz. 132, 136, ¶ 20, 194 P.3d 399, 403 (2008) (claim of sentencing error not raised below reviewed for fundamental burden of error). showing As a result, fundamental on error appeal and Wright resulting has the prejudice. State v. Henderson, 210 Ariz. 561, 567, ¶¶ 19-20, 115 P.3d 601, 607 (2005). ¶5 First, Wright argues the El Dorado prior should not have been used as a historical prior to enhance his sentence because the State did not present sufficient evidence to prove the conviction qualified as a historical prior. We disagree. ¶6 more priors is A criminal subject Class 6 to defendant more 3 years with severe one sentencing 3.75 years 4 or historical ranges. 4.5 years A.R.S. § 13-604. The conviction for definition a class of two a or historical class prior three includes felony a committed within ten years of the date of the current offense or a class four, class years of five, the date 604(W)(2)(b)-(c). within the [a]ny time excluded. ¶7 or class of six the felony current committed offense. within A.R.S. five § 13- In calculating whether a prior conviction is necessary [the time frames defendant] to spent be . a . historical . prior, incarcerated is Id. Wright concedes the El Dorado prior would be a felony in Arizona, but he asserts it cannot be shown to be within five years of the present offense, excluding his time spent incarcerated, because [i]t is impossible to determine how long he was incarcerated from this record without some type of expert testimony from California prison or parole officials. 4 Wright s impossibility argument, however, fails to meet the requirements imposed on him by Henderson s standard of fundamental error and resulting prejudice. As our supreme court explained in Henderson, fundamental error review involves a fact-intensive inquiry. 210 Ariz. at 568, ¶ 26, 115 P.3d at 608. 4 Wright s On appeal, the State asserts the five-year time frame is inapplicable because Wright s prior convictions would qualify as class three felonies and thus are subject to the ten-year time frame. The State did not make this argument in the superior court and, at that time, considered Wright s priors to be subject to the five-year time frame. Because this argument was not made below, we will not consider it. 5 invocation of impossibility without any analysis of the record hardly constitutes Henderson. the fact-intensive inquiry required by To the extent Wright believes it is impossible to calculate the age of the prior offense, he bears the burden of showing why the court could not have reached the conclusion it did on the evidence before it. Accordingly, he has failed to demonstrate fundamental error and prejudice. ¶8 Even if we considered Wright s argument, our review of the pen pack reveals the El Dorado prior was within five years of the present offense if Wright s time spent incarcerated is excluded. The pen pack shows Wright committed the El Dorado prior in 2001, but no specific date is shown. As a result, we treat the crime as occurring on January 1, 2001. Fogel, 16 Ariz. App. 246, 248, 492 P.2d 742, Cf. State v. 744 (1972) (statutes of limitation construed liberally in favor of the accused ). The pen pack shows Wright was September 4, 2001, to April 21, 2002: 229 days. in prison from Wright returned to prison from September 4, 2002, to January 4, 2004: 487 days. Wright went to prison again from March 10, 2005, to April 7, 2005: 28 days. And Wright returned to prison a fourth time from October 20, 2006, to April 10, 2007: 172 days. If these periods of incarceration are added together they total 916 days, which is a little over 2.5 years. 6 ¶9 Adding 916 days to the El Dorado-prior-offense date of January 1, 2001, moves Wright s El Dorado-prior-offense date to July 6, 2003. This date is within five years of November 27, 2007, and thus Wright s El Dorado prior occurred within five years of the date of his present offense if his time spent incarcerated is excluded. ¶10 Second, Wright argues the Amador prior should not have been used to enhance his sentence because the State failed to provide sufficient historical prior. evidence the conviction qualified as a Again, we reject this argument because the burden is on Wright, not the State, to show fundamental error and prejudice on appeal, as we explained above. ¶11 See supra ¶ 7. Even if we considered Wright s argument, our review of the pen pack demonstrates the Amador prior occurred within five years of the present offense if Wright s time spent incarcerated is excluded. According to the pen pack, Wright committed the Amador prior on May 1, 2001. The 916 days of prison time we calculated above, see supra ¶ 8, were all after May 1, 2001, and before November 27, 2007, so those days must be excluded here as well. Thus, for our calculation, adding the 916 days of prison time changes the offense date of the Amador prior from May 1, 2001, to November 3, 2003. This new date is within five years of November 27, 2007, and thus Wright s Amador prior occurred 7 within five years of the date of his present offense if his time spent incarcerated is excluded. ¶12 Third, Wright argues the Petit Theft prior should not have been used as a historical prior because it would not be a felony in Arizona and did not occur within five years of the present offense. We need not consider these arguments. Because the El Dorado prior and Amador prior were historical priors, see supra ¶¶ 7, 10, they were sufficient to subject Wright to an enhanced sentence under A.R.S. § 13-604(C) and thus the court s treatment of the Petit Theft prior was immaterial. ¶13 Fourth, Wright argues the State presented insufficient evidence he was on parole when he committed the present offense. 5 We disagree because the superior court could reasonably infer, based on the pen pack, Wright committed the offense while on parole. ¶14 A defendant who commits a crime in Arizona while on parole cannot receive a mitigated sentence and is not eligible for suspension of sentence and placement on probation. 13-604.02(B). receive A.R.S. § Instead, the minimum sentence the defendant can becomes the presumptive severe punishments remain available. 5 prison term, although more Id. Wright raised this argument in superior court, and thus our review is for an abuse of discretion. State v. Rodriguez, 200 Ariz. 105, 106, ¶ 3, 23 P.3d 100, 101 (App. 2001). 8 ¶15 The involvement pen with pack the contains California a timeline penal system, of and, Wright s based on this, the court could reasonably infer he committed the present offense while on parole. parole effective April On June 8, 2007, he was suspended from 11, 2007. offense on November 27, 2007. He committed the present The next notations in the pen pack show that on February 2, 2008, Wright was Arrested/Hold placed and on February 8, 2008, he was reinstated on parole effective February 2, 2008. Although the pen pack does not explicitly explain what it means in California for a person s parole to be suspended, the superior court could have inferred from the pen pack that Wright s suspension did not mean he had been released from parole. Wright s felony sentencing document for the Amador prior stated: [I]f the defendant absconds, any period following suspension or revocation of parole until the defendant returns to custody shall not apply to the limits on the parole term. Therefore, we hold the court made a reasonable inference and did not abuse its discretion in finding Wright was on parole when he committed the present offense. 9 CONCLUSION ¶16 For the foregoing reasons, we affirm Wright s sentence. _/s/______________________________ PATRICIA K. NORRIS, Judge CONCURRING: _/s/_______________________________________ PETER B. SWANN, Presiding Judge _/s/_______________________________________ DANIEL A. BARKER, Judge 10

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