State v. Holmes

• Decision Date: 03 December 2020
• Docket Number: No. 2 CA-CR 2019-0202,2 CA-CR 2019-0202
• Citation: 250 Ariz. 311,478 P.3d 1256
• Parties: The STATE of Arizona, Appellant, v. Terrell Isaiah HOLMES, Appellee.
• Court: Arizona Court of Appeals

250 Ariz. 311

478 P.3d 1256

The STATE of Arizona, Appellant,

v.Terrell Isaiah HOLMES, Appellee.

No. 2 CA-CR 2019-0202

Court of Appeals of Arizona, Division 2.

Filed December 3, 2020

Barbara LaWall, Pima County Attorney, By Jacob Lines, Deputy County Attorney, Tucson, Counsel for Appellant

Law Offices of Cornelia Wallis Honchar P.C., Tucson, By Cornelia Wallis Honchar, Counsel for Appellee

Presiding Judge Staring authored the opinion of the Court, in which Chief Judge Vásquez and Judge Brearcliffe concurred.

STARING, Presiding Judge:

¶1 The state appeals from the dismissal of its indictment charging Terrell Holmes with weapons misconduct. For the reasons that follow, we reverse.

Factual and Procedural Background

¶2 In September 2018, Holmes pled guilty in CR20174852 to solicitation to commit burglary in the third degree, described in the plea agreement as "a class six undesignated offense." The plea agreement stated that an undesignated offense "shall be treated as a felony for all purposes unless and until the Court enters an order designating the offense a misdemeanor."¹ The trial court accepted Holmes's guilty plea at the hearing and set entry of judgment and sentencing. Holmes thereafter failed to appear for sentencing on multiple occasions.

¶3 In December 2018, Holmes was charged with weapons misconduct—possession of a deadly weapon by a prohibited possessor—under A.R.S. § 13-3102(A)(4) based on the state's allegation that he had knowingly possessed a firearm on November 29, 2018, after he pled guilty in CR20174852. Holmes filed a motion to dismiss pursuant to Rule 16.4(b), Ariz. R. Crim. P., arguing that because he had been "denied his due process right to notice" that he was a convicted felon and, thus, a prohibited possessor, "his actions [did] not lawfully constitute criminal conduct" and the indictment was insufficient as a matter of law. He also claimed he had received ineffective assistance of counsel in his previous case.

¶4 The trial court granted Holmes's motion, concluding he had been "deprived of the notice required by the due process clause in both the United States and Arizona Constitution[s] that he was a convicted felon at the time he entered into his plea to a class six open-ended offense." The state timely appealed. We have jurisdiction pursuant to article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4032(1).

Discussion

¶5 The state argues the trial court erred in dismissing Holmes's indictment because it was legally sufficient under Rule 16.4(b), which "does not allow pretrial dismissal based on the facts of the case." Further, the state asserts, "even if the court could look past legal sufficiency ... and consider Holmes's factual arguments," Holmes had notice that he was a prohibited possessor and dismissal was improper. We review a court's ruling on a motion to dismiss based on insufficiency of the indictment for an abuse of discretion. State v. Wood , 198 Ariz. 275, ¶ 6, 8 P.3d 1189 (App. 2000). Additionally, "we review questions of statutory interpretation and constitutional law de novo." State v. Ramsey , 211 Ariz. 529, ¶ 5, 124 P.3d 756 (App. 2005).

¶6 Rule 16.4(b) provides that "[o]n a defendant's motion, the court must order a prosecution's dismissal if it finds that the indictment, information, or complaint is insufficient as a matter of law." An indictment is sufficient as a matter of law "if it informs the defendant of the essential elements of the charges; is sufficiently definite so that the defendant can prepare to meet the charges; and protects the defendant from subsequent prosecution for the same offense." State v. Rickard-Hughes , 182 Ariz. 273, 275, 895 P.2d 1036, 1038 (App. 1995) (discussing legal sufficiency of an indictment under former Rule 16.6(b), Ariz. R. Crim. P., now Rule 16.4(b) ).

¶7 The state contends Holmes's indictment for prohibited possession was legally sufficient because it provided him with notice of the crime with which he was charged, allowed him to prepare to defend against that charge, and protected him from later prosecution for the same conduct. Further, the state asserts, Holmes's argument for dismissal below was based on facts rather than law, and because factual defenses to a charge are irrelevant to the issue of legal sufficiency of the indictment, State v. Kerr , 142 Ariz. 426, 431, 690 P.2d 145, 150 (App. 1984), dismissal was improper. Specifically, the state argues that whether Holmes had been convicted of a crime and whether he had notice and knowledge that he was a prohibited possessor are questions of fact "not cognizable in a motion to dismiss." The state also argues that although an indictment may be legally insufficient if a defendant can admit to all of the allegations therein and still not have committed a crime, Mejak v. Granville , 212 Ariz. 555, ¶ 4, 136 P.3d 874 (2006), "[i]f Holmes admitted to the allegations in the indictment, it would be clear that a crime was committed."

¶8 Holmes counters that the indictment was defective because "ignorance of a ‘legal fact’ can negate an element of the offense," and the state failed to allege he "knew of an alleged felony status or had any knowledge that he was an alleged prohibited possessor." Although Holmes conceded below that "knowledge he was a prohibited possessor is not an element of the offense," he contends on appeal that, consistent with Rehaif v. United States , ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019), which interprets 18 U.S.C. § 922(g), the state is now required to prove a defendant knew he was a convicted felon and prohibited possessor at the time of the offense. And, relying on State v. Barnett , 209 Ariz. 352, ¶ 18, 101 P.3d 646 (App. 2004), he asserts "a factual impossibility existed" in that he "was not a convicted felon" and "had no knowledge that he was prohibited from possessing a weapon." He further claims the language of A.R.S. § 13-3101(A)(7)(b) supports his position in that, because his right to possess a weapon "had never been rescinded," he could not have had that right "restored." Thus, he argues, the indictment was not dismissed based on facts but rather "based on the lack of probable cause to support each of the elements of the indictment, making the indictment legally insufficient."

¶9 Section 13-3102(A)(4), A.R.S., provides that a person commits weapons misconduct by "[p]ossessing a deadly weapon or prohibited weapon if such person is a prohibited possessor." A "prohibited possessor" includes any person "[w]ho has been convicted ... of a felony ... and whose civil right to possess or carry a gun or firearm has not been restored."² 2016 Ariz. Sess. Laws, ch. 297, § 1. Our supreme court has concluded the "popular meaning of the word" "conviction" is that a person has been convicted "after a determination of guilt is made" even when no sentence or formal judgment has been imposed. State v. Green , 174 Ariz. 586, 587, 852 P.2d 401, 402 (1993). Further, the court has held that "[o]ne is convicted when there has been a determination of guilt by verdict, finding, or the acceptance of a plea." State v. Thompson , 200 Ariz. 439, ¶ 7, 27 P.3d 796 (2001). "Sentencing is not required." Id.

¶10 A felony is defined as "an offense for which a sentence to a term of imprisonment in the custody of the state department of corrections is authorized by any law of this state." A.R.S. § 13-105(18). Under A.R.S. § 13-604(A), a class six undesignated offense "shall be treated as a felony for all purposes until such time as the court may actually enter an order designating the offense a misdemeanor." And, the "contingent possibility that the offense may ultimately be designated a misdemeanor at some future date does not detract from the reality that the person has been convicted of a class 6 felony within the meaning of § [13-604(A)], and that it should be treated as a felony for all purposes unless and until it is designated otherwise." State v. Arana , 173 Ariz. 370, 371, 843 P.2d 652, 653 (1992) (defendant convicted of a class six undesignated offense required to pay felony sanctions despite possibility offense would eventually be designated a misdemeanor).

¶11 The indictment in this case charged Holmes with possession of a deadly weapon by a prohibited possessor, a class four felony, stating: "On or about the 29th day of November, 2018, Terrell Isaiah Holmes, knowingly possessed a deadly weapon, to wit: firearm, while having been convicted of a felony, in violation of A.R.S. § 13-3102(A)(4)." Thus, it informed him of the elements of the charge against him, allowed him to prepare to defend against the charge, and protected him from later prosecution for the same offense. See Rickard-Hughes , 182 Ariz. at 275, 895 P.2d at 1038. And, if Holmes were to admit to all of the allegations in the indictment—that he knowingly possessed a firearm after previously having been convicted of a felony—he would be guilty of possession of a deadly weapon by a prohibited possessor. See Mejak , 212 Ariz. 555, ¶ 4, 136 P.3d 874.

¶12 Holmes's conviction in CR20174852 occurred when the trial court accepted his plea in September 2018. See Thompson , 200 Ariz. 439, ¶ 7, 27 P.3d 796 ; Green , 174 Ariz. at 587, 852 P.2d at 402. Indeed, during argument on Holmes's motion to dismiss, the court stated: "I accepted the plea, found a factual basis and found that he knowingly, intelligently and voluntarily entered into it...." Consequently, before he is alleged to have committed weapons misconduct, Holmes had been convicted of solicitation to commit burglary in the third degree. And, as noted in the plea agreement, that offense was to be "treated as a felony for all purposes unless and until" the court designated it a misdemeanor.

¶13 To the extent Holmes relies on Barnett , 209 Ariz. 352, 101 P.3d 646, to support his argument that he could not have committed weapons misconduct because he was not a convicted felon and had not had his right to possess a weapon...