State v. Cornish
| Decision Date | 26 May 1998 |
| Docket Number | No. 1,CA-CR,1 |
| Parties | STATE of Arizona, Respondent, v. James CORNISH, Petitioner. 96-0922-PR. |
| Court | Arizona Court of Appeals |
¶1 James Cornish (defendant) petitions this court to review the trial court's summary dismissal of his petition for post-conviction relief. Because the facts in this matter establish that the crime of attempted aggravated assault is a dangerous offense, and because consecutive sentences are appropriate, the petition is without merit.
¶2 Defendant forcibly entered the home of his victim and intentionally strangled her, causing a life-threatening injury. Rendered unconscious by the attack, the victim later regained consciousness and found that her pants were unzipped and pulled down. She also noticed moisture between her legs. 1 Defendant was charged by indictment with second-degree burglary, a class 3 felony; kidnapping, a class 2 felony; attempted sexual assault, a class 3 felony; and attempted second-degree murder, a class 2 felony, or alternatively, aggravated assault, a class 3 felony. He pled guilty to burglary, a class 3 non-dangerous felony and attempted aggravated assault, a class 4 dangerous felony. The parties stipulated that defendant would be sentenced to prison for not less than the presumptive term for the attempted aggravated assault, and five years supervised probation, consecutive to the prison term, on the burglary conviction. The trial court accepted the plea agreement and sentenced defendant to the presumptive term of six years for attempted aggravated assault, a dangerous felony, and five years supervised probation, to be served consecutively to the prison sentence, for the crime of burglary.
¶3 Defendant then timely filed a petition for post-conviction relief. In the petition, defendant argued that the convictions and sentences were invalid because defendant was illegally sentenced. The state filed a response and, after considering the pleadings, the trial court summarily dismissed the petition.
¶4 Defendant timely petitions this court to review the trial court's summary dismissal of the petition for post-conviction relief. In the petition for review, defendant argues the same two issues raised below:
1) Attempted aggravated assault is a preparatory offense and therefore cannot be dangerous pursuant to Ariz.Rev.Stat. Ann. (A.R.S.) § 13-604(F) (Supp.1996); and
2) The imposition of consecutive sentences was improper.
¶5 A.R.S. § 13-604(F) reads as follows:
Except as provided in § 13-604.01, a person who is at least eighteen years of age or who has been tried as an adult and who stands convicted of a class 4, 5 or 6 felony involving the intentional or knowing infliction of serious physical injury or the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument without having previously been convicted of any felony shall be sentenced to imprisonment as prescribed in this subsection and shall not be eligible for suspension of sentence, probation, pardon or release from confinement on any basis except as specifically authorized by § 31-233, subsection A or B until the sentence imposed by the court has been served, the person is eligible for release pursuant to § 41-1604.07 or the sentence is commuted. The presumptive term may be mitigated or aggravated within the range prescribed under this subsection pursuant to the terms of § 13-702, subsections B, C and D. The terms are as follows:
Felony Minimum Presumptive Maximum
Class 4 4 years 6 years 8 years
Class 5 2 years 3 years 4 years
Class 6 1.5 years 2.25 years 3 years
¶6 Defendant argues that this statute does not authorize treatment of preparatory offenses as dangerous felonies. He argues that it only applies to completed offenses. To support his argument, he notes that other subsections of A.R.S. § 13-604 specifically mention preparatory offenses. For example, subsections (A), (B), (C), and (S), of A.R.S. § 13-604 state that the terms of the particular subsection apply to a felony, "whether a completed or preparatory offense...." Because certain subsections specifically state that a felony qualifies as dangerous or repetitive whether it is preparatory or completed, and because that language is absent from subsection (F), defendant argues that preparatory offenses cannot be treated as dangerous pursuant to subsection (F).
¶7 Defendant's construction of the statute would lead to untenable results. Chapter 6 of Title 13 deals with dangerous and repetitive offenders and sets forth applicable sentence ranges. Subsections (A)--(D) set forth the minimum, presumptive, and maximum sentences for offenders with one or two historical prior felony convictions. As noted, subsections (A)--(C) include the language that any otherwise qualifying felony qualifies whether it is a "preparatory or completed" offense. The language does not appear in subsection (D). There does not appear to be any rational basis for exclusion of this language. The failure to include this language in subsection (D) was likely a legislative oversight.
¶8 Subsections (F) through (K) set forth the minimum, presumptive, and maximum sentences for offenders with a dangerous conviction, and a dangerous conviction with one or two prior dangerous convictions. None of these subsections includes the "whether preparatory or completed" offense language. However, none of these subsections purports to limit application only to completed offenses.
¶9 The language of subsection (F) is plain and unambiguous. Enhanced punishment applies to any person at least 18 years of age "who has been tried as an adult and who stands convicted of a class 4, 5 or 6 felony involving the intentional or knowing infliction of serious physical injury...." By its own terms, this statute applies to any felony, whether preparatory or completed. As such, this court normally would not need to resort to statutory rules of construction. However, because the "whether preparatory or completed" offense language appears in four subsections and not in others, the disparity among subsections is confusing and consequently subject to interpretation. See Gibbons v. Superior Court, 178 Ariz. 362, 364, 873 P.2d 700, 702 (App.1994) ().
¶10 Additionally, case law dealing with other enhanced penalty statutes has arrived at conclusions highly dependent on the text of the statutes that the court was interpreting. Attempt is a preparatory offense. State v. Tellez, 165 Ariz. 381, 383, 799 P.2d 1, 3 (App.1989). "Preparatory offenses are separate and distinct from substantive offenses." Id. (citing 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law, § 6.1 (1986)). Because preparatory offenses are separate and distinct from substantive crimes, it has been held, under certain circumstances, that mandatory sentencing provisions for substantive offenses do not apply for a conviction of attempt to commit the underlying substantive offense. For example, in State v. Wise, 164 Ariz. 574, 578, 795 P.2d 217, 221 (App.1990), this court held that a mandatory fine should not have been imposed on a defendant who pleaded guilty to attempt to possess a narcotic drug. We held that the statutory fine only applied to the underlying substantive offense of possession of a narcotic drug. Id. The court reached this conclusion based upon the fact that the applicable statute, A.R.S. § 13-3408(E), provided the following:
In addition to any other penalty prescribed by this title, the court shall order a person who is convicted of a violation of any provision of this section to pay a fine of not less than two thousand dollars or three times the value as determined by the court of the narcotic drugs involved in or giving rise to the charge, whichever is greater....
Id. (first emphasis added) (alteration in original). In Wise, the defendant was not convicted under A.R.S. § 13-3408. Id. Thus, the court held that although that provision defined some of the elements of the preparatory offense of attempt to possess narcotic drugs, the defendant pled guilty to a violation of A.R.S. § 13-1001 (attempt). Id.
¶11 Similarly, in State v. Tellez, the court held that the mandatory fine for sale of narcotics did not apply to a solicitation to sell narcotics. 165 Ariz. at 384, 799 P.2d at 4. Again, the court based its result on the fact that the limiting language of A.R.S. § 13-3408 unambiguously limited the mandatory fine to violations of that specific section:
In addition to any other penalty prescribed by this title, the court shall order a person who is convicted of a violation of any provision of this section to pay a fine of not less than two thousand dollars or three times the value as determined by the court of the narcotic drugs involved in or giving rise to the charge....
Id. at 382, 799 P.2d at 2 (emphasis added) (alteration in original). Although solicitation involves the underlying crime of sale of narcotics, solicitation was punishable under a different section of Title 13, A.R.S. § 13-1002.
¶12 In contrast, in State v. Lammie, 164 Ariz. 377, 793 P.2d 134 (App.1990), this court held that a statute requiring convicted sex offenders to register also applied to defendants convicted of attempted sexual offenses. In Lammie, we noted that although A.R.S. § 13-3821 required registration of " '[a] person who has...
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