State v. Mora

• Decision Date: 28 September 2021
• Docket Number: No. 1 CA-CR 19-0342,1 CA-CR 19-0342
• Citation: 498 P.3d 1087,54 Arizona Cases Digest 4
• Parties: STATE of Arizona, Appellee, v. Steven MORA, Appellant.
• Court: Arizona Court of Appeals

54 Arizona Cases Digest 4

498 P.3d 1087

STATE of Arizona, Appellee,

v.Steven MORA, Appellant.

No. 1 CA-CR 19-0342

Court of Appeals of Arizona, Division 1.

FILED September 28, 2021

Arizona Attorney General's Office, Phoenix By Joshua C. Smith, Counsel for Appellee

Brown & Little PLC, Chandler By Matthew O. Brown Counsel for Appellant

Judge Michael J. Brown delivered the opinion of the Court, in which Presiding Judge Jennifer M. Perkins and Judge David B. Gass joined.

BROWN, Judge:

¶1 Steven Mora challenges the sentences imposed on his child molestation convictions, asserting the superior court erred when it found his Texas prior convictions were predicate felonies that compelled enhancement of his sentences to life in prison. Alternatively, he argues a jury should have made that determination.

¶2 We conclude the court properly held that offenses committed in other jurisdictions can serve as predicate felonies under A.R.S. § 13-705, and that whether such an offense qualifies as a "sexual offense" is a question of law. But the court committed fundamental, prejudicial error when it implicitly concluded the statute underlying the Texas convictions had a statutory analog in Arizona. Thus, we vacate the sentences imposed on the molestation counts and remand for re-sentencing.

BACKGROUND

¶3 As pertinent here, a jury convicted Mora of two counts of child molestation; on appeal, Mora challenges neither of those convictions. Before trial, the State alleged Mora had prior felony convictions, including two from Texas for "Indecency with a Child - Contact." The victims of the Texas crimes testified at Mora's trial under Arizona Rule of Evidence 404(C). During the trial proceedings, Mora argued his Texas offenses were not predicate felonies requiring an enhanced sentence under A.R.S. § 13-705(Q)(2). The superior court disagreed, finding the State proved by clear and convincing evidence the two Texas prior convictions were "sexual offenses" that qualified as predicate felonies. The court based its ruling on documents confirming the Texas convictions and testimony from the Texas victims. At sentencing, the court denied Mora's renewed objection that he had no predicate felonies and imposed two consecutive life sentences. This timely appeal followed, and we have jurisdiction under A.R.S. § 12-120.21(A)(1).

¶4 After our initial review of the appellate briefs, we ordered supplemental briefing on whether Mora's Texas felonies strictly conform with any Arizona felony offenses. See State v. Fernandez , 216 Ariz. 545, 554, ¶ 32, 169 P.3d 641, 650 (App. 2007) ("Although we do not search the record for fundamental error, we will not ignore it when we find it."). Mora argued the superior court fundamentally erred in finding his Texas convictions were predicate felonies and re-sentencing is necessary; the State agreed. Thus, the issues before us have become moot. Generally, we do not decide mooted issues. In re Leon G. , 204 Ariz. 15, 17, ¶ 2 n.1, 59 P.3d 779, 781 (2002). But when such issues are of public importance or capable of recurring, we may properly address them, and we do so here. See State v. Reed , 248 Ariz. 72, 77, ¶ 17, 456 P.3d 453, 458 (2020) (recognizing that because "courts are not constrained to decide only appeals with active controversies," an appeal need not be dismissed when it is moot).

DISCUSSION

¶5 Under Arizona law, dangerous crimes against children are subject to special sentencing requirements under A.R.S. § 13-705. Subsection 13-705(I) states that a person convicted of child molestation "who has been previously convicted of two or more predicate felonies shall be sentenced to life imprisonment." "Predicate felony," for the purpose of this section, is defined as:

any felony involving child abuse pursuant to § 13-3623, subsection A, paragraph 1, a sexual offense , conduct involving the intentional or knowing infliction of serious physical injury or the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument, or a dangerous crime against children in the first or second degree.

A.R.S. § 13-705(Q)(2) (emphasis added). The superior court enhanced Mora's sentence under § 13-705(I) and (Q)(2) because it concluded that Mora's Texas felonies fell into the "sexual offense" category of predicate felonies.

A. Foreign Convictions

¶6 The question of whether a foreign conviction constitutes a felony in Arizona is an issue of law, subject to our de novo review. State v. Smith , 219 Ariz. 132, 134, ¶ 10, 194 P.3d 399, 401 (2008). We also review de novo the interpretation of a statute. State v. Burbey , 243 Ariz. 145, 146, ¶ 5, 403 P.3d 145, 146 (2017). "To determine a statute's meaning, we look first to its text." Id. at 147, ¶ 7, 403 P.3d at 147. When construing a particular provision, we consider "the context and related statutes on the same subject."

Nicaise v. Sundaram , 245 Ariz. 566, 568, ¶ 11, 432 P.3d 925, 927 (2019). We do not employ secondary construction principles "if the statute is subject to only one reasonable interpretation." Glazer v. State , 237 Ariz. 160, 163, ¶ 12, 347 P.3d 1141, 1144 (2015).

¶7 Mora argues that foreign convictions cannot serve as predicate felonies under § 13-705(I) and (Q)(2), pointing to the absence of supporting language in § 13-705(Q)(2). He contends that if the legislature intended otherwise, it would have used language to that effect, especially considering the statute's consequences—imposition of a mandatory life sentence. Mora correctly notes that several other statutes relating to prior convictions specifically include references to convictions from other jurisdictions. See, e.g. , A.R.S. § 13-706(F)(1) (offenses committed "outside this state" can qualify as a "[s]erious offense"); § 13-1423(A) (offenses committed "outside this state" can qualify as historical convictions for the crime of "violent sexual assault"); § 13-105(22)(d), (e), (f) (offenses committed "outside the jurisdiction of this state" can qualify as "[h]istorical prior felony conviction[s]").

¶8 The language of § 13-705(Q)(2), however, read in context with the criminal code's definition section, supports the conclusion that foreign convictions may constitute predicate felonies. Subsection 13-705(Q)(2) defines predicate felony as "any felony" that fits into one of the listed categories. The phrase "any felony" is not commonly understood to mean only a felony committed in Arizona. See State v. Korzep , 165 Ariz. 490, 493, 799 P.2d 831, 834 (1990) ("We give words their usual and commonly understood meaning unless the legislature clearly intended a different meaning."). Further, the legislature has defined "felony" 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) (emphasis added). The definition of "offense" includes "conduct for which a sentence to a term of imprisonment or of a fine is provided by any law of the state in which it occurred ." A.R.S. § 13-105(27) (emphasis added). Reading the plain text of § 13-705(Q)(2) in context with the related definitions means that "any felony" involving "a sexual offense" includes felonies committed in foreign jurisdictions.

¶9 Mora, nonetheless, argues the term "any felony" does not necessarily include foreign offenses. In support, he directs us to A.R.S. § 13-105(22)(d), which states that a historical prior felony conviction means "[a]ny felony conviction that is a third or more prior felony conviction. For the purposes of this subdivision, ‘prior felony conviction’ includes any offense committed outside the jurisdiction of this state that was punishable by that jurisdiction as a felony." (Emphasis added.) Mora argues that if "any felony" necessarily means any felony offense committed in a foreign jurisdiction, the language in § 13-105(22)(d) would be superfluous. According to Mora, the absence of such language in § 13-705 means the legislature did not intend § 13-705(Q)(2) to apply to foreign convictions.

¶10 In Arizona, however, foreign felonies must generally have an Arizona analog to qualify as a predicate felony or sentence-enhancing conviction. See State v. Large , 234 Ariz. 274, 281, ¶ 21, 321 P.3d 439, 446 (App. 2014). Section 13-105(22)(d), on the other hand, varies from the general rule, stating that sentence-enhancing convictions include "any offense committed outside the jurisdiction of this state that was punishable by that jurisdiction as a felony ." (Emphasis added.) The standard definitions of "felony" and "offense" already incorporate foreign convictions. Thus, § 13-105(22)(d) does not support Mora's argument because it merely requires that the out-of-state conviction be a felony in the foreign jurisdiction, omitting the analog requirement.

¶11 Mora also relies on In re Casey G. , 223 Ariz. 519, 224 P.3d 1016 (App. 2010). In that case, a juvenile admitted the charge of "sexual conduct with a minor under fifteen" as part of a plea agreement. Id. at 519, ¶ 1, 224 P.3d at 1016. In the delinquency petition, the State alleged the charge was a "dangerous crime against children," which would subject the juvenile to a sentence enhancement under § 13-705 if charged with certain crimes in the future as an adult. Id. at 520, ¶¶ 1, 3, 224 P.3d at 1017. Before the disposition hearing, the superior court denied the juvenile's motion to strike the enhancement allegation. Id. at ¶ 1. On appeal, we reversed the denial, explaining that if the legislature intended a predicate felony under § 13-705 "to include delinquency adjudications for acts that otherwise would constitute dangerous crimes against children if committed by an adult," it would have said so explicitly. Id. at 521, ¶ 7, 224 P.3d at 1018. Mora argues the same logic applies here; if the legislature intended § 13-705 to include foreign convictions, it would have included express language.

¶12 Mora's reliance on Casey G. is misplaced because the sentence enhancement...