STATE v. THOMAS

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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. DL THOMAS, JR., Appellant. ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 07/12/2012 RUTH A. WILLINGHAM, CLERK BY: sls 1 CA-CR 11-0250 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-178969-001DT The Honorable Susan M. Brnovich, Judge AFFIRMED IN PART, VACATED AND REMANDED IN PART ________________________________________________________________ Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Joseph T. Maziarz, Assistant Attorney General Matthew H. Binford, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender Phoenix By Tennie B. Martin, Deputy Public Defender Attorneys for Appellant ________________________________________________________________ G E M M I L L, Judge ¶1 DL Thomas, Jr. appeals from his three convictions and accompanying sentences. of probation marijuana. imposed For the On appeal he challenges only the term on his reasons conviction that for follow, we possession affirm of Thomas s three convictions and we affirm his sentences for possession of dangerous drug drugs (methamphetamine) paraphernalia. possession of Because marijuana for of sale and possession sentencing conviction, we of error on his his term of vacate probation and remand for resentencing. FACTUAL AND PROCEDURAL HISTORY ¶2 We view the record in the light most favorable to sustaining the trial court s decision. See State v. Sasak, 178 Ariz. 182, 189, 871 P.2d 729, 736 (App. 1993). Based on this principle, the following facts were revealed at trial. ¶3 In January 2009, Thomas was indicted on the following three counts: sale, a class count two one, felony; possession count two, of dangerous possession drugs or use for of marijuana, a class six felony; and count three, possession of drug paraphernalia, a class six felony. Counts one and three involved the possession of methamphetamine or drug paraphernalia related to possession of methamphetamine. After all the evidence was presented, a jury found Thomas guilty on all three counts. ¶4 In November 2010, the 2 trial court held a trial to determine prior convictions. that Thomas had four In this trial, the State proved prior felony convictions qualifying as historical prior felony convictions. with two In March 2011, Thomas was sentenced to a thirteen-year flat sentence for count one and a presumptive 3.75-year sentence for count three, both sentences to be served concurrently. For count two, the court suspended imposition of sentence and imposed a two-year term of probation, to be served after the sentences on the other two counts. The trial court ordered probation for count two, the possession of marijuana count, after concluding that the conviction met the criteria for mandatory probation under Proposition 200. ¶5 Thomas timely appeals and we have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (2003), 13-4031 (2010), and 13-4033(A)(1) (2010). 1 ANALYSIS ¶6 Thomas raises one issue on appeal: whether the trial court committed error when it imposed probation for possession of marijuana. Thomas failed to object to this issue at sentencing, and, therefore, our review is confined to a review for fundamental error on appeal. 1 See State v. Henderson, 210 We cite to the current versions of statutes when no revisions material to this decision have occurred since the date of the alleged offenses. 3 Ariz. 561, 567, ¶¶ 19 20, 115 P.3d 601, 607 (2005) (failing to object at the trial level limits fundamental prejudicial error). appellate review for Under fundamental error review, Thomas must prove that the trial court erred, the error was fundamental (error impacting the foundation of the case), and that he was thereby prejudiced by the error. ¶7 Ariz. Probation is not a sentence. 295, 298, 767 P.2d 16, 19 See id. State v. Muldoon, 159 (1988). Nonetheless, an improper order of probation is illegal and fundamental error, just like an illegal sentence. See State v. Bouchier, 159 Ariz. 346, 347, 767 P.2d 233, 234 (App. 1989). Therefore, we will analyze Thomas s term of probation in this light. ¶8 Thomas argues that his probation term was illegal and fundamental A.R.S. 200). § error because 13-901.01 Thomas the (2010) asserts trial court (colloquially that his known conviction possession was not Proposition 200 eligible. ¶9 Section 13-901.01(A) improperly mandates as applied Proposition for marijuana We agree. that the trial court place a defendant on probation in response to a conviction for personal possession or use of a controlled substance or drug paraphernalia. Section 13-901.01(H)(4), however, provides that [a] person is not eligible for probation under this section . . . if the court finds the person . . . [w]as convicted of the personal possession or use of a controlled substance or drug 4 paraphernalia and the offense involved methamphetamine. (emphasis added). ¶10 did At the time of Thomas s sentencing, the trial court not have the benefit of guidance from a recent opinion issued by this court that interprets and applies A.R.S. § 13901.01 under similar facts. 265 P.3d whether 1104 a (App. In State v. Siplivy, 228 Ariz. 305, 2011), defendant who this was court answered convicted the question simultaneously of multiple offenses, some of which otherwise would qualify for mandatory probation and some of which do not, is entitled to mandatory 901.01. Siplivy probation for the qualifying offenses Id. at 307, ¶ 4, 265 P.3d at 1106. did not provide terms of under § 13 The trial court in probation for the non- methamphetamine offenses as ordinarily mandated by § 13-901.01. Id. at 306, ¶ 1, 265 P.3d at 1105. This court analyzed the statutory purpose of A.R.S. § 13-901.01 and concluded: [g]iven the announced public policy concerning persons who commit methamphetamine related offenses, we cannot conclude that the legislature intended to impose such incentives on the methamphetamine-related offenses, but not the other associated offenses. We conclude, therefore, that the legislature intended to exclude defendants convicted of methamphetamine-related offenses from mandatory probation rather than just excluding those offenses. Id. at 308, ¶ 11, 265 P.3d at 1107. 5 ¶11 The State acknowledges that the trial court erred in its application of § 13-901.01 to Thomas s marijuana conviction. Count one (possession of methamphetamine for sale) and count three (possession of drug paraphernalia related methamphetamine) were methamphetamine-related charges. to Based on the language of § 13-901.01(H) and Siplivy, we conclude that the trial court erred in imposing probation instead of a prison sentence regarding Thomas s possession of marijuana conviction. ¶12 The State argues, however, that Thomas is not entitled to appellate relief because the error was not fundamental. The State further contends that Thomas suffered no prejudice because the trial court had discretion to sentence Thomas to probation and the term of probation was within the permitted statutory range. ¶13 the We are not persuaded by the State s arguments. imposition of probation was not justified applicable statutes, as we explain herein. First, under the Therefore, Thomas received the functional equivalent of an illegal sentence, which constitutes fundamental error. 767 P.2d probation. at 234. Thomas See Bouchier, 159 Ariz. at 347, does not qualify for a term of The trial court found that Thomas had four prior felony convictions after a trial on priors. Two of these were found to be historical priors pursuant to A.R.S. § 13-105(22) (Supp. 2011). Section 13-703(C) (Supp. 2011) provides that a 6 person such as Thomas, who has been convicted of at least two historical prior felony convictions, shall be sentenced as a category three repetitive offender. Thomas s possession or use of marijuana conviction is a class six felony. See A.R.S. § 13- 3405(A)(1), (B)(1) (Supp. 2011). Accordingly, under A.R.S. § 13-703(J), sentence the trial following ranges: court must Thomas 2.25 years to 5.75 years. does not qualify for a term of probation. within the Therefore, Thomas See A.R.S. § 13- 703(O) ( A person who is sentenced pursuant to this section is not eligible for . . . probation. ) (emphasis added). ¶14 the Thomas must also establish that he was prejudiced by term of probation under fundamental error review. Henderson, 210 Ariz. at 568-69, ¶ 26, 115 P.3d at 608-09. See He argues that he was prejudiced by the trial court s combination of sentences and probation because he must serve the term of probation after he completes his prison terms for the concurrent counts one and three. This probation tail means that Thomas was given a term of probation to be served consecutively to the other two sentences. sentences him Thomas suggests that if the trial court properly, without applying Proposition 200, it could impose a term of prison to be served concurrently with the other two sentences consecutive requisite sentence. showing that leaving We he agree was 7 no probation that Thomas prejudiced here, tail and no has met the in order to establish reversible fundamental error. as to whether the trial court on We express no opinion remand should impose a concurrent or consecutive sentence for count two, the marijuana conviction. CONCLUSION ¶15 For Thomas s convictions. possession the for foregoing sale of We reasons, also dangerous possession of drug paraphernalia. for possession of marijuana is we affirm affirm drugs his all three of sentences for (methamphetamine) and Thomas s term of probation vacated and this matter is remanded for resentencing on that conviction. ______/s/_________________________ JOHN C. GEMMILL, Presiding Judge CONCURRING: ___/s/___________________________ PETER B. SWANN, Judge ___/s/___________________________ ANDREW W. GOULD, Judge 8

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