State v. Flores

• Decision Date: 31 July 2008
• Docket Number: No. 1 CA-CR 07-0800 PRPC.,1 CA-CR 07-0800 PRPC.
• Citation: 218 Ariz. 407,188 P.3d 706
• Parties: STATE of Arizona, Respondent, v. Andres Coz FLORES, Petitioner.
• Court: Arizona Court of Appeals

188 P.3d 706

218 Ariz. 407

STATE of Arizona, Respondent, v. Andres Coz FLORES, Petitioner.

No. 1 CA-CR 07-0800 PRPC.

Court of Appeals of Arizona, Division 1, Department D.

July 31, 2008.

Andrew Thomas, Maricopa County Attorney by David E. Wood, Deputy County Attorney, Phoenix, Attorneys for Respondent.

James J. Haas, Maricopa County Public Defender by Brent E. Graham, Deputy Public Defender, Phoenix, Attorneys for Petitioner.

OPINION

WEISBERG, Judge.

¶ 1 Petitioner Andres Coz Flores ("Flores") seeks review of the trial court's order summarily dismissing his petition for post-conviction relief. The question of subject matter jurisdiction presented by this case is one of first impression. We must decide whether Arizona has jurisdiction over the crime of solicitation to commit human smuggling when the offense is committed by a Mexican citizen, Flores, in Mexico, but the result or effect of the crime is Flores' illegal entry into and subsequent illegal transportation within Arizona. For the reasons set forth in this opinion, we conclude that Arizona has jurisdiction to convict Flores of solicitation. Accordingly, we grant review, but deny relief.

FACTS AND PROCEDURAL HISTORY

¶ 2 The relevant facts are few and undisputed. Flores was arrested after he was discovered in a vehicle with other aliens located in Maricopa County. At that time, Flores told police that he was from Mexico City. He further stated that he had contacted an unknown person in San Luis, Mexico who agreed to transport Flores illegally to Los Angeles.¹ Flores was indicted for conspiracy to commit smuggling and later pled guilty to solicitation to commit smuggling. The factual basis offered at the change of plea is as follows:

[DEFENSE COUNSEL]: Your honor, on or about February 27th of 2006 Mr. Coz Flores made arrangements to with [sic] another person in Mexico to be transported by that person to the United States and he either paid that person or had arrangements to pay that person to transport him to the United States illegally. And it is illegal because Mr. Coz Flores is not a U.S. citizen.

THE JUDGE: And was there anything done to further his transportation into Maricopa County?

[DEFENSE COUNSEL]: He made the arrangements to pay this person and, in fact, was transported into Maricopa County.

The trial court accepted the plea and imposed sentence according to its terms.²

¶ 3 Flores then timely filed a notice of petition for post-conviction relief.³ Appointed counsel filed the petition and argued that the factual basis for Flores' guilty plea was insufficient to establish jurisdiction.⁴ Counsel pointed out that the crime of solicitation is a crime separate from the crime solicited and is complete when the solicitor, acting with the requisite intent, makes the request. Because the facts established that the solicitation occurred and was completed in Mexico, counsel argued that Arizona did not have subject matter jurisdiction.

¶ 4 In response, the State argued that solicitation, a preparatory offense, is a continuing offense and that, because Flores admitted that he was transported into Maricopa County as a result of his solicitation, jurisdiction was properly exercised.⁵

¶ 5 The trial court denied relief because "the admitted criminal conduct constituted the offense of solicitation to commit human smuggling. This offense, like conspiracy, was ongoing and was committed in significant part in Maricopa County, where the defendant and co-defendants were ultimately arrested." Flores timely petitions this court for review and maintains that, because Arizona has no subject matter jurisdiction, his conviction and sentence must be vacated.⁶

DISCUSSION

Waiver and Standard of Review

¶ 6 A plea agreement waives all non-jurisdictional defects. See State v. Moreno, 134 Ariz. 199, 200, 655 P.2d 23, 24 (App.1982) (entering a plea of guilty waived all of defendant's non-jurisdictional defenses errors, and defects prior to the plea). The waiver of non-jurisdictional defects includes deprivations of constitutional rights. Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973) (guilty plea represents a break in the chain of events which has preceded it in the criminal process; when a criminal defendant, on advice of counsel, has solemnly admitted in open court that he is guilty of a charged offense, he may not thereafter raise independent claims relating to deprivation of constitutional rights that antedated plea); see State v. Canaday, 116 Ariz. 296, 296, 569 P.2d 238, 238 (1977). However, subject matter jurisdiction cannot be waived, even by a guilty plea, and it may be raised at any time. State v. Marks, 186 Ariz. 139, 141-42, 920 P.2d 19, 21-22 (App. 1996); State v. Buckley, 153 Ariz. 91, 93, 734 P.2d 1047, 1049 (App.1987); Ariz. R.Crim. P. 16.1(b) ("Lack of [subject matter] jurisdiction may be raised at any time."). Because subject matter jurisdiction is a question of law, our review is de novo. State v. Sorkhabi, 202 Ariz. 450, 452, ¶ 5, 46 P.3d 1071, 1073 (App. 2002); In re Marriage of Crawford, 180 Ariz. 324, 326, 884 P.2d 210, 212 (App.1994) (subject matter jurisdiction is a question of law and review is de novo).

The Criminal Conduct

¶ 7 Flores pled guilty to solicitation to commit human smuggling in violation of Arizona Revised Statutes ("A.R.S.") sections 13-1002(A) (2001)⁷ and 13-2319(A) (Supp.2007). Solicitation is a crime separate from the crime solicited, and, unlike conspiracy, the crime of solicitation is complete when the solicitor, acting with the requisite intent, makes the request. It requires no agreement or action by the person solicited. A.R.S. § 13-1002(A); State v. Ysea, 191 Ariz. 372, 376, ¶ 12, 956 P.2d 499, 503 (1998), superseded by statute on other grounds, A.R.S. § 13-703(F)(2) (2001), as recognized in State v. Martinez, 196 Ariz. 451, 462, ¶ 44, 999 P.2d 795, 806 (2000); see also State v. Johnson, 131 Ariz. 299, 302 n. 1, 640 P.2d 861, 864 n. 1 (1982) (quoting Wayne R. LaFave & Austin W. Scott, Jr., Handbook on Criminal Law, at 420 (1972)).

¶ 8 Human smuggling is defined as intentionally smuggling human beings for profit or commercial purpose, knowing that the person or persons smuggled are not lawfully in Arizona.⁸ It is undisputed by the parties that while in Mexico Flores solicited another person to smuggle him into the United States, which would include travel within Arizona. Thus, Flores committed the crime of solicitation while in Mexico.⁹ None of Flores' conduct constituting any element of the offense of solicitation occurred in Arizona.

Jurisdiction

¶ 9 Because Flores committed the offense outside Arizona, we must determine whether the state can exercise subject matter jurisdiction over the crime. Arizona Revised Statute section 13-108(A)(1) (2001) reads in pertinent part as follows:

A. This state has jurisdiction over an offense that a person commits by his own conduct or the conduct of another for which such person is legally accountable if:

1. Conduct constituting any element of the offense or a result of such conduct occurs within this state.

(Emphasis added). Before deciding whether Arizona has jurisdiction pursuant to this statute, we must first examine whether Arizona's jurisdiction is subject to constitutional limitations, notably Article I, Section 10, and the Supremacy Clause in Article VI, Clause 2, of the United States Constitution. As noted in State v. Miller, 157 Ariz. 129, 755 P.2d 434 (App.1988), the parameters of § 13-108(A)(1) are thoughtfully discussed in the Arizona Criminal Code Commission Commentary (1975):

The primary constitutional question for jurisdictional statutes involves the power of a state to legislate other than on a strict territorial basis. The following excerpt from the Michigan Revised Criminal Code (proposed), commentary to § 140 summarizes the law:

Unless the state constitution contains a provision limiting the power of the legislature to enact legislation with extraterritorial application, the Tenth Amendment to the United States Constitution and United States Supreme Court cases like [Skiriotes v. Florida, 313 U.S. 69, 61 S.Ct. 924, 85 L.Ed. 1193 (1941)], and [Strassheim v. Daily, 221 U.S. 280, 31 S.Ct. 558, 55 L.Ed. 735 (1911)], appear clearly to permit a state to exercise any basis of legislative jurisdiction recognized in international law unless (1) the actual application of state legislation conflicts with the paramount power of the federal government to regulate and conduct foreign relations, (2) the legislation covers an area that the Congress has preempted under one of the powers delegated to it, or (3) there is an impermissible conflict with the legislative policies of the other state or states in which the defendant's actual conduct took place.

Id. at 20 (emphasis added). Thus, the Code Commission recognized that the principles of international law circumscribe the state's criminal jurisdiction.

Miller, 157 Ariz. at 131, 755 P.2d at 436. In Miller, and later in State v. Willoughby, 181 Ariz. 530, 892 P.2d 1319 (1995), A.R.S. § 13-108 (2001) was interpreted to permit jurisdiction to the full extent of both federal and international law.

Because the text of § 13-108 may fairly be construed to give Arizona jurisdiction "over crimes having any `contact' with this state," see 1 Rudolf J. Gerber, Criminal Law Of Arizona 108-1 (2d ed.1993), criminal jurisdiction should reach the extent permitted under federal and international law. There being no textual limit on the reach of this statute conferring extra-territorial power, we conclude that the statute includes, on its face, offenses consummated in foreign countries as well as in other states. . . .

Willoughby, 181 Ariz. at 542, 892 P.2d at 1331. Thus, we must examine whether there are any constitutional or other limitations to the state's exercise of jurisdiction over Flores' offense.

Federalism and Preemption

¶ 10 The Tenth Amendment to the United States Constitution...