State v. Twigg
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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.Sup.Ct. 111(c); ARCAP 28(c);
Ariz.R.Crim.P. 31.24
IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION ONE
STATE OF ARIZONA,
DIVISION ONE
FILED: 09/20/2011
RUTH A. WILLINGHAM,
CLERK
BY: DLL
1 CA-CR 10-0213
Appellant,
DEPARTMENT A
MEMORANDUM DECISION
(Not for Publication –
Rule 111, Rules of the
Arizona Supreme Court)
v.
RANDY OWEN TWIGG, JR.,
Appellee.
Appeal from the Superior Court in Maricopa County
Cause No. CR2009-145461-001 DT
The Honorable Pendleton Gaines, Judge
AFFIRMED
William G. Montgomery, Maricopa County Attorney
by
Arthur Hazelton, Deputy County Attorney
Attorneys for Appellant
Phoenix
Maricopa County Public Defender
By
Karen M. Noble, Deputy Public Defender
Attorneys for Appellee
Phoenix
I R V I N E, Judge
¶1
The State of Arizona timely appeals from the trial
court’s sentence of Randy Owen Twigg, Jr. based on its finding
that he had only one historical prior instead of two because his
forgery and attempted forgery offenses committed on March 19 and
21, 2005, constituted “the same offense.” For the reasons that
follow, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2
A
jury
convicted
Twigg
of
burglary
in
the
third
degree, a class four felony, for breaking into a jeep. Under the
sentencing
guidelines,
a
defendant
with
two
prior
historical
felonies is a category three repetitive offender subject to a
ten-year presumptive prison term. Ariz. Rev. Stat. § 13-703(C),
(J) (Supp. 2010). 1 The presumptive term for one historical prior,
however, is 4.5 years. Id. at § 13-703(B), (I) (category two
repetitive offender).
¶3
The State initially alleged Twigg had four historical
prior felonies. During trial, it reduced the allegations to two
historical priors: one count of forgery on March 19, 2005, and
one count of attempted forgery on March 21, 2005. Twigg moved to
strike the amended allegation as “insufficient as a matter of
law” because the two alleged offenses “were committed on the
same
occasion
and
should
only
count
as
one
prior
felony
conviction pursuant to § 13-703(L).” Arizona Revised Statutes §
13-703(L) (Supp. 2010) provides that “[c]onvictions for two or
more offenses committed on the same occasion shall be counted as
1
We cite to the current version of applicable statutes when
no revisions material to this decision have occurred.
2
only one conviction for the purposes” of sentencing a category
two or three repetitive offender.
¶4
Specifically, Twigg argued the prior offenses were:
1) Committed at the same location, the JC
Penny’s located in the Flagstaff Mall; 2)
both of these offenses involved the exact
same victim; 3) the two offenses were
committed less than 24 hours apart; 4) Mr.
Twigg’s
actions
were
continuous
and
uninterrupted between the time he took the
purse and the time that the credit card was
confiscated by the JC Penny’s employee; and
5) Mr. Twigg had one criminal objective
which was to use the victim’s credit card
fraudulently at that JC Penny’s store.
¶5
not
The State objected on grounds (1) the offenses were
committed
on
the
same
day,
(2)
the
offenses
involved
different victims, and (3) the nature of the criminal acts were
not related. As proof, the State attached a copy of the original
indictment showing that the forgery offense was for forging the
cardholder’s
name
at
JC
Penney
on
March
19,
2005,
and
the
attempted forgery was for possessing a forged check belonging to
a different victim on March 21, 2005. After the State presented
fingerprint evidence, the trial court found that Twigg committed
both offenses. It continued sentencing, requesting a copy of the
plea agreement, indictment, minute entry and the transcript of
the change of plea hearing so that it could determine whether
the offenses occurred on the “same occasion.”
3
¶6
At the next hearing, the State reiterated its position
that
the
forgery
and
attempted
forgery
offenses
referred
to
Counts V and VIII of the indictment, which involved completely
different
conduct,
transcript,
the
time
trial
and
victims.
court
determined
Relying
the
only
on
attempted
the
forgery
offense was based on the second time Twigg attempted to use the
stolen credit card at JC Penney. Finding this offense involved
the
“same
victim,
same
card,
same
method
of
operation,
same
location, and temporal proximity, which is within []36 or []48
[hours],”
the
trial
court
concluded
that
the
forgery
and
attempted forgery “should be considered one historical prior for
sentencing purposes.”
¶7
in
Twigg was sentenced to a presumptive term of 4.5 years
prison
as
a
category
two
repetitive
offender
with
one
historical prior felony. The State timely appealed.
DISCUSSION
¶8
On
court’s
appeal,
finding
the
that
State
appears
the
attempted
to
forgery
accept
was
the
based
trial
on
the
second use of the credit card on March 20 or 21, 2005. The State
thus argues the trial court erred in determining that the two
offenses occurred on the “same occasion” because the offenses
were
committed
on
different
days,
interrupted
by
unrelated
conduct, and had different criminal objectives. The State argued
before the trial court, however, that the forgery and attempted
4
forgery referred to the signing of the stolen credit card on
March 19, and the signing of the forged check on March 21,
respectively.
Therefore,
the
two
acts
involved
two
different
victims and wholly unrelated criminal objectives.
¶9
The trial court’s determination that two offenses were
committed on the “same occasion” under A.R.S. § 13-703(L) is a
mixed question of fact and law that we review de novo. State v.
Derello, 199 Ariz. 435, 437, ¶ 8, 18 P.3d 1234, 1236 (App.
2001). In determining this issue, a court analyzes five factors:
1) time, 2) place, 3) number of victims, 4) whether the crimes
were
continuous
and
uninterrupted,
and
5)
whether
they
were
directed to the accomplishment of a single criminal objective.
State v. Kelley, 190 Ariz. 532, 534, ¶ 6, 950 P.2d 1153, 1155
(1997).
¶10
When
comparing
the
forgery
and
attempted
forgery
offenses in this case, the trial court reviewed the relevant
indictment, which shows that Twigg was charged with:
Count III:
FRAUDULENT USE OF CREDIT CARD
On or about 03/19/2005, [Twigg], with the
intent to defraud, used for the purposes of
obtaining or attempting to obtain money,
goods, services or any other thing of value,
a credit card . . . .
. . . .
5
Count V
FORGERY
On or about 03/19/2005, [Twigg], with the
intent to defraud, falsely made, completed
or altered a written instrument, to wit: JC
PENNEY CREDIT CARD RECEIPT, a class 4 felony
. . . .
. . . .
Count VIII
FORGERY
On or about 03/21/2005, [Twigg], with the
intent to defraud, falsely made, completed
or altered a written instrument, to wit: [T.
and D.] C.’S ARIZONA STATE SAVINGS & CREDIT
UNION CHECK #3479 PAYABLE TO RANDY OWEN
TWIGG IN THE AMOUNT OF $60.00, a class 4
felony . . . .
¶11
that
The transcript of the change of plea hearing shows
when
asked
for
a
factual
basis
for
each
count,
the
prosecutor explained only that Twigg used a stolen credit card
at JC Penney on March 19, 2005, and tried using the same card
again on “March 20th or the 21st.” Nothing indicates, however,
that this described the attempted forgery of a check expressly
referred to as “Count VIII.” Read together, the indictment and
transcript show that the attempted forgery in Count VIII was
based on a different criminal objective (obtaining money with a
forged check), a different victim (checking account holder), and
a
different
time
(March
21st)
offenses in Counts III and V.
6
than
the
credit-card
related
¶12
The trial court may very well have erred by basing its
decision only on the factual basis stated in the transcript, but
the State does not make that argument here. It argues only that
there
were
two
separate
forgery
offenses
based
on
uses
or
attempted uses of the stolen credit card. The problem with using
these separate acts of forgery as historical priors is that the
record is clear that Twigg was only convicted of one count of
forgery based on the credit card. The narrow issue presented by
the State in its appeal is whether the trial court erred in
finding only one historical prior based on use of the credit
card. Considering this narrow issue, we find no error.
CONCLUSION
¶13
For these reasons, we affirm.
/s/
PATRICK IRVINE, Judge
CONCURRING:
/s/
MARGARET H. DOWNIE, Presiding Judge
/s/
LAWRENCE F. WINTHROP, Chief Judge
7
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