State v. Mangum, 2 CA-CR 2005-0384.

• Citation: 150 P.3d 252,214 Ariz. 165
• Decision Date: 12 January 2007
• Docket Number: No. 2 CA-CR 2005-0384.,2 CA-CR 2005-0384.
• Parties: The STATE of Arizona, Appellee, v. Walter James MANGUM, Appellant.
• Court: Court of Appeals of Arizona

150 P.3d 252

214 Ariz. 165

The STATE of Arizona, Appellee, v. Walter James MANGUM, Appellant.

No. 2 CA-CR 2005-0384.

Court of Appeals of Arizona, Division 2, Department A.

January 12, 2007.

Terry Goddard, Arizona Attorney General by Randall M. Howe and Eric J. Olsson, Tucson, Attorneys for Appellee.

Creighton Cornell, P.C. by Creighton Cornell, Tucson, Attorney for Appellant.

OPINION

PELANDER, Chief Judge.

¶ 1 Following a jury trial, appellant Walter Mangum was convicted of possession of a deadly weapon by a prohibited possessor. The trial court suspended the imposition of sentence and placed Mangum on probation for three years. On appeal, he argues on various grounds the trial court erred in not dismissing the sole charge against him after the Pima County Justice Court vacated the underlying conviction that had created his prohibited possessor status. He also contends the evidence was insufficient to support his conviction and the trial court erroneously precluded any evidence at trial that his underlying conviction was invalid.

¶ 2 Although the first issue Mangum raises is a close one, we conclude he was not entitled to dismissal of the prohibited possessor charge after the underlying, predicate conviction on which that charge was based was found constitutionally invalid and vacated. Accordingly, the trial court did not err in failing to dismiss this case on that basis. We also find no merit in Mangum's other arguments and, therefore, affirm.

BACKGROUND

¶ 3 We view the evidence in the light most favorable to upholding the jury's verdict. See State v. Tamplin, 195 Ariz. 246, ¶ 2, 986 P.2d 914, 914 (App.1999). The pertinent procedural facts, however, are undisputed. In October 2002, Mangum pled guilty in justice court to a misdemeanor domestic violence/disorderly conduct offense in violation of A.R.S. §§ 13-2904 and 13-3601(A) and was placed on supervised probation. In July 2003, a probation officer inspected Mangum's residence and discovered firearms in his bedroom. About a week later, Mangum was indicted on a charge of possession of a deadly weapon by a prohibited possessor "while serving a term of probation" in violation of A.R.S. § 13-3102(A)(4) and former (J) (now (K)).

¶ 4 Shortly thereafter, Mangum petitioned the justice court for post-conviction relief from the misdemeanor domestic violence conviction pursuant to Rule 32, Ariz. R.Crim. P., 17 A.R.S. In October 2004, the justice court granted relief, finding multiple, prejudicial violations of Mangum's right to counsel and on that basis vacating the misdemeanor conviction for which Mangum had been placed on probation in 2002. The state apparently did not further pursue any charges against Mangum in connection with that prior incident.

¶ 5 Mangum then moved to dismiss the prohibited possessor charge in this case based on the justice court's having vacated the underlying misdemeanor conviction. Because that conviction had been "recently deemed invalid," Mangum argued, his "alleged probationary status of July, 2003[was] a nullity." After hearing argument, the trial court (Judge Tang) denied the motion without comment. This court later declined to accept jurisdiction of Mangum's petition for special action challenging that ruling, Mangum v. State, No. 2 CA-SA 2005-0024 (order filed May 3, 2005), and thereafter, our supreme court denied his petition for review, Mangum v. State, No. CV-05-0215-PR (Ariz. Sup.Ct. order filed Dec. 8, 2005). During the ensuing trial in this case, the trial court (Judge Sabalos) denied Mangum's motion for reconsideration of Judge Tang's previous denial of the motion to dismiss and also denied Mangum's motion for judgment of acquittal made pursuant to Rule 20, Ariz. R.Crim. P., 17 A.R.S. The trial court later denied Mangum's post-trial motion for a new trial, in which he reurged the same arguments previously made below and now presented on appeal.

DISCUSSION

I.

¶ 6 Mangum first argues the trial court erred in refusing to dismiss the prohibited possessor charge after the justice court vacated his misdemeanor domestic violence conviction and ultimately dismissed that charge. We review for abuse of discretion a trial court's ruling on a motion to dismiss criminal charges, but questions of statutory interpretation and constitutional law are reviewed de novo. State v. Ramsey, 211 Ariz. 529, ¶ 5, 124 P.3d 756, 759 (App.2005). "A trial court abuses its discretion when it misapplies the law or predicates its decision on incorrect legal principles." State v. Jackson, 208 Ariz. 56, ¶ 12, 90 P.3d 793, 796 (App. 2004).

¶ 7 As noted earlier, Mangum was charged with having committed weapons misconduct "while serving a term of probation" in violation of § 13-3102(A)(4). That statute prohibits one from "knowingly ... [p]ossessing a deadly weapon or prohibited weapon if such person is a prohibited possessor." The phrase "`[p]rohibited possessor'" includes "any person ... [w]ho is at the time of possession serving a term of probation pursuant to a conviction for a domestic violence offense as defined in [A.R.S.] § 13-3601." A.R.S. § 13-3101(A)(6)(d). As the state correctly points out, at the time of his July 2003 arrest on the prohibited possessor charge, Mangum "was serving a 24-month term of probation pursuant to his [justice court] conviction for domestic violence/disorderly conduct" and, therefore, "was a prohibited possessor at that time."

¶ 8 Mangum does not directly challenge that fact or conclusion, nor does he expressly argue that the prohibited possessor statutes under which he was convicted are ambiguous or unconstitutional.¹ But, citing State v. McCann, 200 Ariz. 27, 21 P.3d 845 (2001), Mangum argues "a prior conviction, used as an element for a new offense, cannot be satisfied by an underlying conviction that is constitutionally infirm."²

¶ 9 In McCann, our supreme court held that "a rebuttable presumption of regularity attaches to prior convictions used to enhance a sentence or as an element of a crime." 200 Ariz. 27, ¶ 1, 21 P.3d at 846. In so holding, the court explained the new procedure to be followed:

When the State seeks to use a prior conviction as a sentence enhancer or as an element of a crime, the State must first prove the existence of the prior conviction. At that time, the presumption of regularity attaches to the final judgment. If the defendant presents some credible evidence to overcome the presumption, the State must fulfill its duty to establish that the prior conviction was constitutionally obtained.

Id. ¶ 15. Thus, under McCann, prior, final judgments of conviction are presumed valid. Id. ¶ 16. But the court "emphasize[d] that [its] ruling does not lessen the burden on the State, which retains the burden of establishing that a prior conviction is constitutionally valid" when used "as an element of a crime." Id. In addition, the court stated: "In cases in which a judgment of conviction results from the violation of constitutional rights, the conviction cannot be used either to establish an element of an offense or for purposes of sentence enhancement. Thus, prior convictions may be used by the State only if constitutionally valid." Id. ¶ 17.

¶ 10 According to Mangum, McCann "is controlling on the use of a constitutionally infirm conviction to prove an element of an offense" and, even if not controlling, "is the most analogous authority, and its reasoning should apply." The trial court, Mangum further asserts, was bound by McCann "and committed reversible error by failing to dismiss the prohibited possessor charge in light of [his] unconstitutional underlying conviction."

¶11 The state does not address, let alone distinguish, the rather broad language in McCann. Nor does the state contend that Mangum's prior domestic violence conviction was not an essential element of the prohibited possessor charge under §§ 13-3101(A)(6)(d) and 13-3102(A)(4).³ Rather, emphasizing the clear wording of those statutes, and particularly the phrase "at the time of possession" in § 13-3101(A)(6)(d), the state asserts its "burden under A.R.S. §§ [13-]3102(A)(4) and -3101(6) was not to prove the present validity of the domestic-violence conviction at the time of trial but only to prove [Mangum's] status as a domestic-violence probationer at the time that he possessed firearms." And, the state further argues, Mangum's "domestic violence conviction, presumptively valid at the time of the instant offense, was probative of his status as a domestic-violence probationer regardless of the subsequent justice-court ruling overturning his guilty plea."

¶ 12 The clear wording of the pertinent statutes supports the state's argument.⁴ Our role in interpreting a statute is to discern and effect the legislature's intent. In re Pima County Juvenile No. 74802-2, 164 Ariz. 25, 33, 790 P.2d 723, 731 (1990). "The best and most reliable index of a statute's meaning is its language and, where the language is clear and unequivocal, it is determinative of a statute's construction." Id.; see also State v. Gomez, 212 Ariz. 55, ¶ 11, 127 P.3d 873, 875 (2006) (when statutory language "is `clear and unambiguous,' and thus subject to only one reasonable meaning, we ... apply[] the language without using other means of statutory construction"), quoting Calik v. Kongable, 195 Ariz. 496, ¶ 10, 990 P.2d 1055, 1057 (1999); State v. Sepahi, 206 Ariz. 321, ¶ 16, 78 P.3d 732, 735 (2003) ("In the end, a statute's language is the most reliable index of its meaning.").

¶ 13 Using plain, unambiguous language, the legislature chose to make "the time of possession" the only relevant point at which the defendant must have been "serving a term of probation pursuant to a conviction for a domestic violence offense." § 13-3101(A)(6)(d). The legislature did not expressly require a determination that a prior conviction be constitutionally valid in order for it to support a prohibited possessor charge under that statute. Nor can we infer any such legislative intent...