State v. Clough
| Decision Date | 23 April 1992 |
| Docket Number | CA-CR,No. 1,1 |
| Citation | 171 Ariz. 217,829 P.2d 1263 |
| Parties | STATE of Arizona, Appellee, v. John Arthur CLOUGH, aka John Clayton Whitefox, Appellant. 89-792. |
| Court | Arizona Court of Appeals |
Grant Woods, Atty. Gen. by Paul J. McMurdie, Chief Counsel, Crim. Div., and Jack Roberts, Asst. Atty. Gen., Phoenix, for appellee.
DeConcini, McDonald, Brammer, Yetwin & Lacy, P.C. by Wayne E. Yehling, Tucson, for appellant.
The defendant, John Arthur Clough, was indicted on charges of third-degree burglary and theft of property in excess of $1,000. The state alleged a prior Montana conviction for issuing a bad check and also alleged that the defendant was on probation for the Montana offense at the time he committed the crimes which give rise to the case now before us.
The defendant represented himself at trial and was found guilty by a jury of both charges. He admitted at trial that he had previously been convicted of a felony, and the court found that he was on probation for that conviction at the time the offenses were committed.
The defendant was sentenced to a presumptive term of six years for burglary, a class four repetitive offense. He also received an aggravated term of nine years for theft, a class three repetitive offense. The sentences were ordered to run concurrently.
The defendant has raised four issues on appeal, each related to the prior Montana conviction. We issued our original opinion affirming the convictions and sentences. In that opinion we held, notwithstanding the state's original confession of error, that the Montana conviction for issuing a bad check could be used to sentence the defendant as a repetitive offender pursuant to the provisions of Ariz.Rev.Stat.Ann. ("A.R.S.") § 13-604(I) (1989), the statute that mandates that the court treat crimes committed in other states as a prior offense for sentencing purposes if the offense committed in the other state would be a felony in Arizona. In our original opinion on this issue, we reasoned that although issuing a bad check is not a felony in Arizona, the The defendant filed a motion for reconsideration, the state responded and the defendant replied. We requested the parties to reargue the issue orally and that was done. We now amend the opinion we filed previously.
[171 Ariz. 219] defendant's conduct in Montana necessarily included the elements of felony theft under the Arizona theft statute.
The defendant's first claim is that the court should not have sentenced him as a repetitive offender pursuant to A.R.S. § 13-604(A). He asserts that the crime he committed in Montana, issuing a bad check, would not be a felony in Arizona, so that the terms of the repetitive offender statute do not apply. The statute to which he refers, A.R.S. § 13-604(I), in pertinent part, provides:
A person who has been convicted in any court outside the jurisdiction of this state of an offense which if committed within this state would be punishable as a felony ... is subject to the provisions of this section.
Issuing a bad check in Arizona is a misdemeanor, not a felony. See A.R.S. § 13-1807. Nonetheless, if the facts of a crime committed in another jurisdiction satisfy the elements of an Arizona felony, the out-of-state conviction can be used to enhance the sentence imposed in Arizona. See State v. Phillips, 139 Ariz. 327, 678 P.2d 512 (App.1983).
There is a nuance to the problem that needs to be addressed. Can the prosecution, in seeking enhancement under A.R.S. § 13-604(I), look to any Arizona felony which has the same elements as the Montana crime, or is it restricted to the Arizona crime most analogous to that committed in Montana, in this case, issuing a bad check? The decision of our supreme court in the case of In the Matter of Marquardt, 161 Ariz. 206, 778 P.2d 241 (1989), is instructive on this point. There, the question was whether an Arizona judge who had been convicted of misdemeanor possession of marijuana in Texas had been convicted of a "crime punishable as a felony under Arizona or federal law" within the meaning of the provision of the Arizona Constitution relating to disqualification for office. Id. at 209, 778 P.2d at 243. Our supreme court held that, although possession of marijuana could, in the discretion of the prosecutor, be treated either as a misdemeanor or a felony in Arizona, the question ought not turn on the policies and the procedures the prosecutor employed. Id. Looking to other cases, the supreme court found that the words "punishable as a felony" refer to the maximum punishment that might be imposed for the conduct involved. Id.
The obvious purpose of the limiting language of A.R.S. § 13-604(A) and (I) is to preclude the enhancement of a sentence if the conduct which led to a conviction in another state has not been judged by our legislature to be so egregious, or so against the public policy of Arizona, as to justify treating it as a felony. Marquardt dictates that we look to the defendant's conduct in Montana, and if that same conduct could, without taking into account the possibility that the prosecutor might charge the crime as a misdemeanor, be punishable in Arizona as a felony, then the prior conviction may be used to enhance the sentence.
At oral argument on the motion to reconsider, counsel for the defendant did not take issue with the application of the law as we have described it above. Instead, he emphasized that there must be strict conformity between the elements of the Montana felony and the elements of some Arizona felony before A.R.S. § 13-604(I) can apply. He is correct. In State v. Ault, 157 Ariz. 516, 521, 759 P.2d 1320, 1325 (1988), our supreme court ruled that in order for an out-of-state conviction to constitute one of the felonies enumerated in A.R.S. § 13-604(O) relating to eligibility for release from prison, a court must be sure that the fact finder in the prior case actually found beyond a reasonable doubt that the defendant had committed every
[171 Ariz. 220] element that would be required to prove the Arizona offense. While Ault dealt with a different statute, we believe its reasoning applies to A.R.S. § 13-604(I). See also State v. Schaaf, 169 Ariz. 323, 333, 819 P.2d 909, 919 (1991) ().
We turn then to consider whether the Montana conviction necessarily encompassed all the elements of any crime that is a felony in Arizona. We look first to the theft statutes because issuing a bad check can be charged as a theft. See A.R.S. § 13-1802(A); State v. Williams, 134 Ariz. 411, 415, 656 P.2d 1272, 1276 (App.1982). In our original opinion, we concluded that the defendant's Montana conduct could constitute a felony theft in Arizona. In Montana, the defendant was convicted of issuing several bad checks totaling $830.73. The applicable statute, Montana Code Annotated § 45-6-316 (1985), provides that issuing a bad check is a felony if the value of what is obtained or attempted to be obtained exceeds $300 or if the offender has issued bad checks as part of a common scheme. While we cannot tell from the record why the Montana crime was a felony, it had to be either because the check was in excess of $300 or because checks were issued as part of a scheme. To be a common scheme in Montana, a series of checks must have been written within a limited period of time. See Mont.Code Ann. §§ 45-2-101 and 45-16-316 annotator's note. In Arizona, a theft of $250 or more is a felony. A.R.S. § 13-1802(C). Under A.R.S. § 13-1801(B), amounts taken in thefts committed pursuant to one scheme or course of conduct, whether from one person or several persons, may, at the discretion of the prosecutor, be aggregated in determining the classification of the offense. Therefore, we, in our original opinion, concluded that all of the elements of the Arizona crime were necessarily found in the conduct for which the defendant had been convicted in Montana. In retrospect, we are not certain that a "scheme" in Montana is the same thing as a "scheme" in Arizona, and our original conclusion may have been wrong for that reason alone. We will not belabor that point because the parties did not address it. We turn to the issue the parties did address.
In his motion for reconsideration, the defendant argued that the Montana crime for which he was convicted could not be, or would not necessarily be, a felony theft in Arizona because every felony theft in Arizona requires that the defendant have the intent to deprive the owner of property. He asserts that an intent to deprive is not an element of the Montana crime of passing a bad check.
The defendant's argument did not reckon with the fact, made known to us for the first time during oral argument, that the Montana statute had been amended effective shortly after the defendant's conviction. The defendant was misled because in our original opinion we mistakenly relied on an amended version of the Montana statute that did not contain the language underlined in the text below. At the time the defendant was convicted in Montana, the Montana statute provided:
45-6-316. Issuing a bad check. (1) A person commits the offense of issuing a bad check when, with the purpose of obtaining control over property or to secure property, labor, or services of another, he issues or delivers a check or other money order upon a real or fictitious depository for the payment of money knowing that it will not be paid by the depository.
Mont.Code Ann. § 45-6-316 (1983) (emphasis added).
The state now argues, based on the Montana statute that was in...
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