State v. Joyner

• Decision Date: 31 May 2007
• Docket Number: No. 2 CA-CR 2006-0032.,2 CA-CR 2006-0032.
• Citation: 215 Ariz. 134,158 P.3d 263
• Parties: The STATE of Arizona, Appellee, v. Ramon Anthony JOYNER, Appellant.
• Court: Arizona Court of Appeals

158 P.3d 263

215 Ariz. 134

The STATE of Arizona, Appellee, v. Ramon Anthony JOYNER, Appellant.

No. 2 CA-CR 2006-0032.

Court of Appeals of Arizona, Division 2, Department A.

May 31, 2007.

Terry Goddard, Arizona Attorney General By Randall M. Howe and Eric J. Olsson, Tucson, Attorneys for Appellee.

Isabel G. Garcia, Pima County Legal Defender By Stephan J. McCaffery, Tucson, Attorneys for Appellant.

OPINION

VÁSQUEZ, Judge.

¶ 1 A jury found Ramon Joyner guilty of possession of a narcotic drug, possession of marijuana, possession of drug paraphernalia, and resisting arrest. It also found that he had prior convictions for armed robbery and attempted armed robbery. He was sentenced to a mitigated, enhanced, eight-year term of imprisonment for possession of a narcotic drug and presumptive, enhanced, 3.75-year terms of imprisonment for each of the other convictions, all to be served concurrently.

¶ 2 On appeal, Joyner maintains his sentences for the possession convictions are illegal. He argues that, as a matter of law, his prior convictions for armed robbery and attempted armed robbery do not fall within the statutory definition of "violent crime" in A.R.S. § 13-604.04, and he is therefore eligible for mandatory probation. See A.R.S. § 13-901.01. On this record, we agree.

Procedural Background

¶ 3 The state alleged in Joyner's indictment that he was "ineligible for probation pursuant to A.R.S. § 13-901.01" based on his past convictions for attempted armed robbery and armed robbery, "which was a violent crime." After the guilty verdicts were rendered, the state presented the jury with evidence of Joyner's prior criminal convictions, including charging documents, plea agreements, sentencing minute entries, and presentence reports for both offenses. The jury found Joyner had been previously convicted of armed robbery and attempted armed robbery, which were identified in the verdict forms by specific cause numbers.

¶ 4 At sentencing, neither the parties nor the trial court addressed the potential application of § 13-901.01, and the presentence report simply noted, "[n]o probation available."¹ The court "reaffirm[ed]" the convictions and the jury's findings that Joyner had two prior felony convictions before imposing sentence.

Standard of Review

¶ 5 Because Joyner did not raise the issues he raises now at sentencing, we review his claims only for fundamental error. See State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005). "To prevail under this standard of review, a defendant must establish both that fundamental error exists and that the error in his case caused him prejudice." Id. ¶ 20. We will not disturb a sentence that is within the statutory range absent an abuse of the trial court's discretion. State v. Russell, 175 Ariz. 529, 534, 858 P.2d 674, 679 (App.1993). On the other hand, "[t]he failure to impose a sentence in conformity with mandatory sentencing statutes makes the resulting sentence illegal." State v. Carbajal, 184 Ariz. 117, 118, 907 P.2d 503, 504 (App.1995). And we have held that the "[i]mposition of an illegal sentence constitutes fundamental error." State v. Thues, 203 Ariz. 339, ¶ 4, 54 P.3d 368, 369 (App. 2002); see also State v. Vargas-Burgos, 162 Ariz. 325, 327, 783 P.2d 264, 266 (App.1989) (claim that sentence illegal not waived by failure to object in trial court). Moreover, "[w]hether the trial court applied the correct sentencing statute is a question of law, which we review de novo." State v. Hollenback, 212 Ariz. 12, ¶ 12, 126 P.3d 159, 163 (App. 2005).

Sentencing Pursuant to A.R.S. § 13-901.01

¶ 6 Section 13-901.01 is the codification of a voter initiative commonly known as Proposition 200 that "significantly changed the legal consequences for defendants convicted of certain nonviolent, first- and second-time drug offenses."² State v. Rodriguez, 200 Ariz. 105, ¶ 2, 23 P.3d 100, 101 (App.2001). Specifically, § 13-901.01(A) provides:

Notwithstanding any law to the contrary, any person who is convicted of the personal possession or use of a controlled substance or drug paraphernalia is eligible for probation. The court shall suspend the imposition or execution of sentence and place the person on probation.

¶ 7 There are limited exceptions to this mandatory probation requirement, however. A court is not required to place a defendant on probation when a defendant has been convicted for a third time of personal possession of a controlled substance, see § 13-901.01(H)(1); State v. Guillory, 199 Ariz. 462, ¶ 3, 18 P.3d 1261, 1263 (App.2001), or when a defendant "has been convicted of or indicted for a violent crime as defined in § 13-604.04," § 13-901.01(B). Section 13-604.04, which was also enacted to give effect to Proposition 200, 1997 Ariz. Sess. Laws, ch. 6, § 1, defines a violent crime as "any criminal act that results in death or physical injury or any criminal use of a deadly weapon or dangerous instrument," § 13-604.04(B). Thus, a defendant who has multiple prior convictions for drug offenses or any prior conviction for a violent crime is subject to "[s]tandard felony sentencing provisions that permit imprisonment." Foster v. Irwin, 196 Ariz. 230, ¶ 3, 995 P.2d 272, 273-74 (2000). Conversely, "[a] prior conviction for a nonviolent, non-drug-related crime does not negate the probation requirement" of § 13-901.01. Foster, 196 Ariz. 230, ¶ 10, 995 P.2d at 276.

¶ 8 Here, the trial court implicitly found Joyner was ineligible for mandatory probation under § 13-901.01(B) (and, by reference, § 13-604.04) because of Joyner's prior convictions for armed robbery and attempted armed robbery. Citing State v. Crawford, 214 Ariz. 129, 149 P.3d 753 (2007); State v. Hinchey, 165 Ariz. 432, 799 P.2d 352 (1990); and Cherry v. Araneta, 203 Ariz. 532, 57 P.3d 391 (App.2002), Joyner argues that whether a defendant's prior conviction may be characterized as a violent crime as defined in § 13-604.04 is a legal question that may be resolved only by reference to the statutory elements of the offense of conviction, without consideration of the underlying facts. And, according to Joyner, a conviction for armed robbery does not necessarily establish a "criminal use of a deadly weapon or dangerous instrument," § 13-604.04, because armed robbery may also be committed by using or threatening to use a simulated deadly weapon, see A.R.S. § 13-1904.³ The state, on the other hand, urges us to affirm the court's implicit finding that Joyner had previously been convicted of a violent crime by considering facts alleged in the documents of record for his prior convictions, including the charging documents, a pretrial release statement, a presentence report, and a sentencing minute entry. According to the state, those documents establish Joyner used a gun when he committed his prior offenses.

Determination of Violent Nature of Prior Conviction

a. Based on Statutory Definition

¶ 9 Division One of this court has held that a court may consider the statutory definition of an offense to discern whether the elements required for conviction necessarily establish the commission of a violent crime under § 13-901.01(B). Cherry, 203 Ariz. 532, ¶¶ 8-9, 57 P.3d at 393 (previous plea of guilty to assault for "[i]ntentionally, knowingly or recklessly caus[ing] any physical injury to another person," A.R.S. § 13-1203(A)(1), necessarily established "physical injury" requirement of § 13-604.04) (first alteration in Cherry); see also Montero v. Foreman, 204 Ariz. 378, ¶¶ 13-14, 64 P.3d 206, 209-10 (App. 2003) (previous guilty plea to disorderly conduct "in violation of A.R.S. § 13-2904(A)(6)," requiring finding that Montero "[r]ecklessly handle[d], display[ed] or discharge[d] a deadly weapon or dangerous instrument" necessarily established violent crime under § 13-604.04) (first alteration in Montero). In Cherry and Montero, the same proof required to find the defendants guilty of the elements of their charged offenses also established, necessarily, that they had been convicted of violent crimes as defined in §§ 13-901.01(B) and 13-604.04. Cf. State v. Parker, 128 Ariz. 97, 99, 624 P.2d 294, 296 (1981) (dangerous nature allegation "must be submitted to the jury for a separate finding unless an element of the offense charged contains an allegation and requires proof of the dangerous nature of the felony") (emphasis added).

¶ 10 In this case, by contrast, Joyner is correct that his prior conviction for armed robbery, as defined in § 13-1904, does not necessarily establish he used a deadly weapon or dangerous instrument because armed robbery may be committed with a simulated deadly weapon — and a "simulated deadly weapon" may be neither deadly nor dangerous. See, e.g., State v. Bousley, 171 Ariz. 166, 168, 829 P.2d 1212, 1214 (1992) (positioning hands to "simulate[ ] deadly weapons" supported armed robbery conviction); State v. Felix, 153 Ariz. 417, 419, 737 P.2d 393, 395 (App.1986) (nasal inhaler constituted simulated deadly weapon). As a result, armed robbery, based solely on its statutory definition, is not necessarily a violent crime under the definition in § 13-604.04.⁴ Thus, next we address whether the other evidence the state proffered could be considered to establish the violent nature of Joyner's prior convictions.

b. Consideration of Underlying Facts Prohibited

¶ 11 In Cherry, Division One of this court suggested, in dictum, that analyzing the statutory elements of an offense is the only means of concluding a prior offense was violent as defined in §§ 13-901.01 and 13-604.04, reasoning that "whether [a] prior conviction is a violent crime for purposes of A.R.S. § 13-901.01 is a question of law for the trial judge." 203 Ariz. 532, ¶ 8, 57 P.3d at 393. Division One perceived that question to be a narrow one, as explained below:

Analysis of the prior conviction "is purely a legal question; it does not depend on the merits of alternative versions of the facts." [State v.] Ault, 157 Ariz. [516,] 520, 759...