State v. McCuin

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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. DEANDRE MARQUIS MCCUIN, Appellant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) 1 CA-CR 10-0747 DIVISION ONE FILED: 07/21/2011 RUTH A. WILLINGHAM, CLERK BY: DLL DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2009-179448-001DT The Honorable Lisa Daniel Flores, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General Phoenix By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Melissa M. Swearingen, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Stephen R. Collins, Deputy Public Defender Attorney for Appellant B A R K E R, Judge Phoenix ¶1 or Deandre McCuin appeals his sentences for threatening intimidating, a class 3 felony; street gang, a class 3 felony. and assisting a criminal For the reasons set forth below, we affirm. Facts and Procedural Background 1 ¶2 On December 26, 2009, two police officers stopped a Chevy Suburban because a records check showed it had a mandatory insurance suspension. McCuin was in the passenger seat, and one of that the officers arrested McCuin, saw he transported had him placed him in a holding cell. McCuin made appended with that. The threatening the phrase officer to marijuana. the The police officers station, and While being held at the station, statements tell testified to one him West that he of the officers, Side City Dre said threatened that felt McCuin would have his gang carry out the threat. McCuin had a gang tattoo, had previously been documented as a gang member, and also admitted that he was a member of a gang. 2 1 We review the facts in the light most favorable to sustaining the jury s verdict and resolve all inferences against McCuin. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998). 2 According to one detective s testimony, under statutory gang membership identification criteria, gang tattoos and self-proclamation are sufficient to document a person as a gang member. 2 ¶3 The State charged McCuin with three counts: (1) possession of marijuana; (2) threatening or intimidating; and (3) assisting a criminal street gang. guilty on each count. The jury found McCuin As part of the aggravation proceedings, the jury made the specific factual finding that McCuin committed the threatening or intimidating count and the assisting a criminal street gang count with the intent to promote, further or assist [] criminal conduct by a criminal street gang. By finding this fact as to the threatening or intimidating count, it became a class 3 felony. 1202 (2010). Ariz. Rev. Stat. ( A.R.S. ) § 13- Otherwise, the conviction would have been a class 1 misdemeanor or a class 6 felony. ¶4 prior Id. The trial court found that McCuin had one historical felony enhancement. McCuin s conviction During sentences that could sentencing, for be the judge threatening assisting a criminal street gang. used or for sentencing further enhanced intimidating and The judge reasoned that because the jury found that the offenses in [the counts] were committed with criminal the street intent to promote, gang . . . [A.R.S. further, or § 13-709.02(C)] years to [the sentence of] each [count]. assist adds a five The judge sentenced McCuin to a total of 11.5 years on each count because the presumptive would be 6.5 years, 3 but when adding five years necessary pursuant to A.R.S. § [13]-709.02(C), it jumps up to 11.5 years. ¶5 McCuin timely appealed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031, and 13-4033(A)(1) (2010). Discussion ¶6 McCuin argues that the trial court was precluded under Arizona s double punishment statute from using the finding that he was promoting, furthering, or assisting criminal conduct by a criminal street gang convictions. enhance According furthering, street to or gang assisting was an to in his McCuin, criminal element of his sentences because conduct on his promoting, by a convictions criminal for both threatening or intimidating under A.R.S. § 13-1202(A)(3) and assisting a criminal street gang under A.R.S. § 13-2321 (2010), Arizona s bar against consecutive sentences for double punishment precluded using this same element to enhance his sentence under A.R.S. § 13-709.02(C) (2010). 3 ¶7 Arizona permits double punishment of the same crime in different ways by different sections of the law. 3 The sentences McCuin does not assert, and accordingly we do not address, whether proving the elements under A.R.S. §§ 13-1202 (A)(3) and/or -2321(B) means that the factual finding required under A.R.S. § 13-709.02(C) has been met. We assume they are the same elements only because that is the premise of McCuin s argument. 4 for the A.R.S. punishments, § 13-116 however, (2010) ( An must act be or served omission concurrently. which is made punishable in different ways by different sections of the laws may be punished under both, but in no event may sentences be other than concurrent. ). ¶8 McCuin s convictions for the class 3 felony of threatening or intimidating and the class 3 felony of assisting a criminal street gang both required proof that McCuin committed the crimes in order or with the intent to promote, further, or assist a criminal street gang. A.R.S. §§ 13-1202, -2321. Indeed, the presence of this element elevated his punishment for threatening or intimidating from a class 6 felony to a class 3 felony. A.R.S. additional five pursuant to § 13-1202(C). years A.R.S. to The McCuin s § 13-709.02(C), judge sentences which then on added both provides an counts sentencing enhancements for [a] person who is convicted of committing any felony offense with the intent to promote, further or assist any criminal conduct by a criminal street gang. The states: The presumptive, minimum and maximum sentence for the offense shall be increased by . . . five years if the offense is a class 2 or 3 felony. The additional sentence imposed pursuant to this subsection is in addition to any enhanced sentence that may be applicable. 5 statute A.R.S. § 13-709.02(C). According to McCuin, this five-year sentencing enhancement is impermissible under Arizona s double punishment under statute different concurrently. same conduct because statutes See A.R.S. under it effectively without § 13-116 different the punishes sentences (permitting statutory him twice running punishment sections only of if sentences run concurrently). ¶9 Our case law, however, suggests otherwise. In State v. Green, our supreme court permitted use of a dangerous finding based on the same event or occurrence to more than one offense, reasoning in part that sentence enhancement. (1995). 4 § 13-116 was not designed to cover 182 Ariz. 576, 580, 898 P.2d 954, 958 This interpretation is consistent with a plain-language analysis of the statutes at issue, which is the best and most reliable index of a statute s meaning. 4 State v. Christian, 205 Green relied on State v. Rodriguez for this proposition. Green, 182 Ariz. at 580, 898 P.2d at 958. In Rodriguez, we reasoned that the double punishment statute did not apply to sentencing enhancements increasing the punishment for aggravated assault when a gun was used because aggravated assault could be committed without use of a gun. State v. Rodriguez, 126 Ariz. 104, 107, 612 P.2d 1067, 1070 (App. 1980). Although this case could be read as limiting non-applicability of the double punishment statute only to sentencing enhancements that contain additional elements than the foundational crime, the later language from our supreme court in Green is not limited in this fashion. Green, 182 Ariz. at 580, 898 P.2d at 958 (stating that § 13-116 was not designed to cover sentence enhancement ). In addition, as we describe below, the clear intent of the legislature as evidenced by the plain language of § 13-709.02(C) was to permit cumulative sentencing. 6 Ariz. 64, 66, ¶ 6, 66 P.3d 1241, 1243 (2003). The text of our double punishment statute reads: An act or omission which is made punishable in different ways by different sections of the laws may be punished under both, but in no event may sentences be other than concurrent. A.R.S. § 13-116 (emphasis added). Sentencing enhancements never run concurrently, and are always cumulative. In addition, sentencing enhancements are not generally seen as separate sentences, but rather enlargements (i.e., enhancements ) of the single foundational sentence. It is unlikely that the legislature intended to include the entire class of sentencing enhancements specifically addressing the issue. in this language without The more likely intent was simply to preclude cumulative sentences for the same act when a criminal statute also covers a separate, lesser-included offense. ¶10 In any case, even if our double punishment statute did cover sentencing enhancements, § 13-709.02(C) plainly states the legislature s intent that the special sentencing enhancements it imposes are to be cumulative. [W]here a special statute deals with the same subject as a general statute, the special statute will control. State v. Weiner, 126 Ariz. 454, 456, 616 P.2d 914, 916 (App. 1980). the sentence 709.02(C) Here, the specific provision enhancing for assisting increases the a criminal presumptive, 7 street minimum, gang and in § 13- maximum sentence of any crime by five years if the crime is a class 2 or 3 felony. states: A.R.S. The § 13-709.02(C). additional The sentence statute imposed then pursuant plainly to this subsection is in addition to any enhanced sentence that may be applicable. Id. The legislature evidently was aware that an enhanced sentence would apply when a defendant was assisting a criminal further street by gang imposing and chose punishment in sentence that may be applicable. overrides the more general to enhance addition Id. those to any sentences enhanced This specific provision double-punishment provision. See Weiner, 126 Ariz. at 456, 616 P.2d at 916. ¶11 Therefore, although McCuin received an enhanced punishment on the two counts at issue, there was no error. The trial judge properly enhanced McCuin s sentences under § 13709.02(C). Conclusion ¶12 For the foregoing reasons, we affirm McCuin s convictions and sentences. /s/ __________________________________ DANIEL A. BARKER, Presiding Judge CONCURRING: /s/ ___________________________ MAURICE PORTLEY, Judge /s/ __________________________________ DIANE M. JOHNSEN, Judge 8

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