State v. Carter

• Decision Date: 19 September 2018
• Docket Number: No. 2 CA-CR 2017-0149,2 CA-CR 2017-0149
• Citation: 429 P.3d 1176
• Parties: The STATE of Arizona, Appellee, v. Bobby Ray CARTER Jr., Appellant.
• Court: Arizona Court of Appeals

429 P.3d 1176

The STATE of Arizona, Appellee,

v.Bobby Ray CARTER Jr., Appellant.

No. 2 CA-CR 2017-0149

Court of Appeals of Arizona, Division 2.

Filed September 19, 2018

Mark Brnovich, Arizona Attorney General, Joseph T. Maziarz, Chief Counsel, By Diane Leigh Hunt, Assistant Attorney General, Tucson, Counsel for Appellee

Harriette P. Levitt, Tucson, Counsel for Appellant

Presiding Judge Vásquez authored the opinion of the Court, in which Judge Espinosa and Judge Eppich concurred.

VÁSQUEZ, Presiding Judge:

¶1 Following a jury trial in three consolidated cases, appellant Bobby Carter Jr. was convicted of one count of aggravated assault, four counts of burglary, three counts of theft, two counts of theft of a means of transportation, one count of robbery, and one count of criminal damage. The trial court found Carter had two or more historical prior felony convictions and sentenced him, as a category three repetitive offender, to a combination of concurrent and consecutive presumptive prison terms of 60.75 years. Counsel filed a brief in compliance with Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and State v. Clark , 196 Ariz. 530, 2 P.3d 89 (App. 1999), stating she had reviewed the record and found no arguable question of law to raise on appeal. Consistent with Clark , she provided "a detailed factual and procedural history of the case with citations to the record," 196 Ariz. 530, ¶ 32, 2 P.3d at 97, and she asked this court to search the record for error. Carter did not file a supplemental brief.

¶2 In the course of our review, we identified arguable issues, raised by Carter at sentencing, implicating double-jeopardy principles. Because we could not say the arguments were "wholly frivolous," Penson v. Ohio , 488 U.S. 75, 84, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we asked the parties for further briefing on the issue of whether Carter received multiple punishments, in violation of the constitutional protections against double jeopardy, as a result of his convictions for five of the counts. For the reasons that follow, we affirm in part and vacate in part the convictions and sentences.

Factual and Procedural Background

¶3 We view the facts in the light most favorable to affirming the jury’s verdicts. State v. Veloz , 236 Ariz. 532, ¶ 2, 342 P.3d 1272, 1274 (App. 2015). On January 10, 2015, Carter engaged in a crime spree that included carjacking a sport utility vehicle (SUV) belonging to C.L., burglarizing a home and barn owned by J.S. and R.S. and stealing some of their property, and taking a tractor belonging to E.A.¹

¶4 With respect to the SUV carjacking, C.L. was sitting in the vehicle’s passenger seat in a store’s parking lot, waiting for her husband, when Carter entered the driver’s side door, told C.L. to get out, and quickly drove away, causing C.L. to fall out of the vehicle and break her leg. Carter subsequently crashed the SUV, valued at $18,000, causing its total loss.

¶5 Sometime after Carter crashed the SUV, United States Border Patrol agents assisting in the investigation found him sitting on E.A.’s tractor, valued at more than $25,000. Carter made eye contact with one of the agents and drove away. The agent followed with his emergency lights activated, and Carter eventually stopped in the middle of a field where he was taken into custody.

¶6 That day, J.S. and R.S. had been in the mountains but returned between 4 and 5 p.m. to find both their home and barn had been burglarized. When Carter was arrested, he had nine pieces of jewelry belonging to J.S. in his pocket, and power tools taken from R.S.’s shed were found in the wreckage of the SUV.

¶7 For the crimes committed against C.L., Carter was charged with and convicted of aggravated assault, burglary, criminal damage, theft of property valued at more than $4,000 but less than $25,000, vehicle theft, and robbery. For the crimes committed against E.A., Carter was charged with and convicted of burglary, vehicle theft, and theft of property valued at more than $25,000. For the crimes committed against J.S. and R.S., Carter was charged with and convicted of two counts of burglary and theft of property having a value of more than $1,000.

¶8 We conclude the evidence was sufficient to support the jury’s verdicts. See A.R.S. §§ 13-1203(A)(1), 13-1204(A)(1), 13-1501, 13-1506(A)(1), 13-1507(A), 13-1601, 13-1602(A)(1), (B)(1), 13-1801, 13-1802(A)(1), 13-1814(A)(1), 13-1901, 13-1902(A). We nonetheless must consider whether some of Carter’s convictions constituted multiple punishments for a single offense, in violation of the Double Jeopardy Clause, as he argued at sentencing.

Discussion

¶9 "The Double Jeopardy Clauses in the United States and Arizona Constitutions prohibit: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense." Lemke v. Rayes , 213 Ariz. 232, ¶ 10, 141 P.3d 407, 411–12 (App. 2006) (footnote omitted); see U.S. Const. amend. V ; Ariz. Const. art. II, § 10.² The first two of these prohibitions lie "at the core of the Clause’s protections," Tibbs v. Florida , 457 U.S. 31, 41-42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982), and "ensure[ ] that the State does not make repeated attempts to convict an individual, thereby exposing him to continued embarrassment, anxiety, and expense, while increasing the risk of an erroneous conviction or an impermissibly enhanced sentence," Ohio v. Johnson , 467 U.S. 493, 498-99, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984).

¶10 We are concerned here, however, with the third protection of multiple punishments imposed after a single trial. "In contrast to the double jeopardy protection against multiple trials," this protection "is designed to ensure that" a defendant’s convictions and sentences are "confined to the limits established by the legislature." Id. at 499, 104 S.Ct. 2536. Thus, "the question under the Double Jeopardy Clause whether punishments are ‘multiple’ is essentially one of legislative intent." Id. ; see also Missouri v. Hunter , 459 U.S. 359, 366-68, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983) (for "cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the ... court from prescribing greater punishment than the legislature intended"); State v. Siddle , 202 Ariz. 512, ¶ 9, 47 P.3d 1150, 1154 (App. 2002) (same).³

¶11 Thus, to determine the constitutionality of multiple convictions and sentences after a single trial, for offenses arising from the same criminal transaction, the dispositive question is whether the legislature "intended to authorize separate punishments" for the separate statutory violations. Albernaz v. United States , 450 U.S. 333, 344, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981). "The intent of the legislature in defining and fixing the punishment for an offense is a question of law we review de novo." State v. McPherson , 228 Ariz. 557, ¶ 5, 269 P.3d 1181, 1183–84 (App. 2012).

¶12 In determining whether multiple punishments are authorized after a single trial, courts assume a legislature "ordinarily does not intend to punish the same offense under two different statutes." Whalen v. United States , 445 U.S. 684, 692, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). "Accordingly, where two statutory provisions proscribe the ‘same offense,’ they are construed not to authorize cumulative punishments in the absence of a clear indication of contrary legislative intent." Id. And to determine whether convictions pursuant to different statutes constitute the "same offense," courts apply the rule of construction found in Blockburger v. United States : "[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). For example, "a defendant may not be convicted for both an offense and its lesser included offense, because they are considered the ‘same offense’ for double jeopardy purposes." State v. Ortega , 220 Ariz. 320, ¶ 9, 206 P.3d 769, 772–73 (App. 2008) (quoting Lemke , 213 Ariz. 232, ¶¶ 16-18, 141 P.3d at 413–14 ).⁴

¶13 But, in the context of multiple punishments imposed after a single trial, the Supreme Court has cautioned, "The Blockburger test is a ‘rule of statutory construction,’ and because it serves as a means of discerning [legislative] purpose the rule should not be controlling where, for example, there is a clear indication of contrary legislative intent." Albernaz , 450 U.S. at 340, 101 S.Ct. 1137. Thus,

Where ... a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the "same" conduct under Blockburger , a court’s task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.

Hunter , 459 U.S. at 368-69, 103 S.Ct. 673.

¶14 Similarly, where the Blockburger test suggests cumulative punishment is permissible, because each statutory provision at issue "requires proof of a fact which the other does not," 284 U.S. at 304, 52 S.Ct. 180, that presumption should not control where, for example, "the legislative history ... discloses an intent contrary to the presumption," Albernaz , 450 U.S. at 340-42, 101 S.Ct. 1137 (silent legislative history insufficient to override Blockburger presumption).

State v. Garcia

¶15 As he did at sentencing, Carter relies on State v. Garcia , 235 Ariz. 627, 334 P.3d 1286 (App. 2014), to argue his three convictions involving the SUV and his two convictions relating to the tractor constituted double jeopardy. In Garcia , another panel of this court concluded that vehicle theft is a lesser-included offense of armed robbery and, accordingly, that the defendant could not be convicted...