State v. Smith

• Decision Date: 30 October 2008
• Docket Number: No. CR-08-0033-PR.,CR-08-0033-PR.
• Citation: State v. Smith, 219 Ariz. 132, 194 P.3d 399 (Ariz. 2008)
• Parties: STATE of Arizona, Appellee, v. Charles Eugene SMITH, Appellant.
• Court: Arizona Supreme Court

194 P.3d 399

219 Ariz. 132

STATE of Arizona, Appellee, v.Charles Eugene SMITH, Appellant.

No. CR-08-0033-PR.

Supreme Court of Arizona, En Banc.

October 30, 2008.

Terry Goddard, Arizona Attorney General by Kent E. Catanni, Chief Counsel, Criminal Appeals, Craig W. Soland, Assistant Attorney General, Joseph T. Maziarz, Assistant Attorney General, Nicholas D. Acedo, Assistant Attorney General, Phoenix, Attorneys for State of Arizona.

James J. Haas, Maricopa County Public Defender by Stephen R. Collins, Deputy Public Defender, Phoenix, Attorneys for Charles Eugene Smith.

OPINION

RYAN, Justice.

¶ 1This case requires us to decide if a defendant's claim that prior felony convictions from other jurisdictions are legally insufficient for sentence enhancement purposes can be reviewed on appeal when he did not preserve the claim in the trial court.We hold that despite the lack of a timely objection, such a claim is reviewable for fundamental error.

I

¶ 2 A jury convicted Charles Eugene Smith of one count of theft of means of transportation, a class three felony, and armed robbery, a class two dangerous felony.The State alleged three prior felony convictions for purposes of sentence enhancement: (1) a 1988 California robbery conviction; (2) a 1992 Florida resisting arrest conviction; and (3) a 1992 Florida robbery conviction.

¶ 3Arizona Revised Statutes("A.R.S.")section 13-604(N)(2001) provides in part that "[a] person who has been convicted in any court outside the jurisdiction of this state of an offense which if committed within this state would be punishable as a felony ... is subject to the provisions of [§ 13-604]."Consequently, Smith's foreign convictions may be used to enhance his sentences only if the offenses for which he was convicted would be felonies in Arizona.

¶ 4 During the sentencing proceeding, the trial judge asked defense counsel if he agreed that Smith's California robbery conviction would meet Arizona's statutory requirements.Counsel answered, "That's correct[,] Your Honor."When asked about the Florida resisting arrest conviction, Smith's attorney similarly replied, "[W]e are not disputing that that is a prior."The trial judge then asked if "the defendant concedes this is, in fact, an allegeable prior felony conviction[?]"Smith's attorney responded, "Yes, Your Honor."¹The judge also asked Smith's attorney to state his position on the Florida robbery conviction.He replied, "Your Honor, we don't dispute that [it qualifies as a historical prior felony conviction]."²

¶ 5The court enhanced Smith's sentences under A.R.S. § 13-604(B).The judge sentenced Smith to 6.5 years for theft of means of transportation.Without explanation, the judge treated the armed robbery as a non-dangerous offense, sentencing Smith to a concurrent term of 9.25 years, even though the jury had found dangerousness.The State did not object to this sentence.

¶ 6 On appeal, Smith argued that his sentences were improperly enhanced.He maintained that none of his three prior foreign convictions strictly conformed to the felony statutes in Arizona as required by A.R.S. § 13-604(N).Relying on two opinions from this Court, State v. Fagnant,176 Ariz. 218, 860 P.2d 485(1993), andState v. Song,176 Ariz. 215, 860 P.2d 482(1993), the State contended that Smith was precluded from raising this argument on appeal.

¶ 7The court of appeals held that "Smith waived his right to appeal whether his foreign convictions constitute felonies under Arizona law because he did not preserve the argument in the trial court."State v. Smith,217 Ariz. 308, 311-12, ¶ 18, 173 P.3d 472, 475-76(App.2007).In reaching its conclusion, the court found Song and Fagnant"controlling."Id. at 311, ¶ 17, 173 P.3d 472, 173 P.3d at 475.

¶ 8 Smith petitioned for review, claiming that the court of appeals' ruling contravenes this Court's decisions in State v. Crawford,214 Ariz. 129, 149 P.3d 753(2007), andState v. Heath,198 Ariz. 83, 7 P.3d 92(2000).After we granted review, the State conceded that Smith may argue for the first time on appeal that his foreign convictions do not constitute felonies in Arizona.The State maintains, however, that such review is limited to fundamental error.It argues that Smith cannot show prejudice because he could have been sentenced as a first-time dangerous offender for the armed robbery offense and given a presumptive term of 10.5 years—1.25 years more than he received.A.R.S. § 13-604(B), (I).

¶ 9We granted review because this is a recurring issue of statewide importance.³We have jurisdiction under Article 6, Section 5(3) of the Arizona Constitution,A.R.S. § 12-120.24(2003), andArizona Rule of Criminal Procedure 31.19.

II

¶ 10"[W]hether a foreign conviction constitutes a felony in Arizona ... raises an issue of law," which we review de novo.Heath,198 Ariz. at 84, ¶ 4, 7 P.3d at 93.Before a court may use "a foreign conviction for sentencing enhancement purposes under § 13-604, the superior court must first conclude that the foreign conviction includes `every element that would be required to prove an enumerated Arizona offense.'"Crawford,214 Ariz. at 131, ¶ 7, 149 P.3d at 755(quotingState v. Ault,157 Ariz. 516, 521, 759 P.2d 1320, 1325(1988)).Because the determination of whether a foreign conviction would constitute a felony in Arizona is a question of law, a defendant's admission that he has a prior felony conviction does not relieve the state of its burden to prove that the foreign conviction established "every element that would be required to prove that such offense would be a felony in Arizona."Heath,198 Ariz. at 84, ¶ 4, 7 P.3d at 93.Instead, the trial court must make "this determination by comparing the statutory elements of the foreign crime with those in the relevant Arizona statute."Crawford,214 Ariz. at 131, ¶ 7, 149 P.3d at 755.

¶ 11The court of appeals acknowledged that the applicability of a foreign conviction is a legal issue.Smith,217 Ariz. at 311, ¶ 16, 173 P.3d at 475.Nevertheless, because neither Song nor Fagnant had been overruled, the court relied on these decisions to conclude that Smith waived the argument that his sentence was improperly enhanced by his prior felonies.Id. at ¶ 17, 860 P.2d 485.

III

¶ 12 The narrow question that this case presents is whether Song and Fagnant still apply to preclude appellate review of the use of prior foreign felony convictions for enhancement purposes if defense counsel fails to object.

¶ 13 In Song,the defendant was convicted of manslaughter.176 Ariz. at 215, 860 P.2d at 482.Song was on parole for a felony conviction in another state when he committed the crime in Arizona.Id.At trial, Song did not object to the use of the prior conviction to enhance his sentence under A.R.S. § 13-604.02(A), a statute that permits enhancement for dangerous felonies committed while a defendant is on release.Song,176 Ariz. at 215, 860 P.2d at 482.On appeal he challenged the use of the prior conviction for the first time.Id.

¶ 14This Court held that legal issues, such as whether a foreign felony would have constituted a felony if committed in Arizona, are precluded unless raised in the trial court.Id. at 218, 860 P.2d at 485(noting that if "a defendant ... fails to object to the use of a prior felony conviction,"he"cannot raise the issue on appeal").The "nature of the conviction as it relates to Arizona law is an issue of law, which like other legal issues is precluded unless raised."Id.

¶ 15 In Fagnant, a companion case to Song,this Court reiterated that whether a foreign conviction constitutes a felony under Arizona law is a legal issue that must be preserved in the trial court.176 Ariz. at 219, 860 P.2d at 486.The trial court had used the defendant's prior Washington felony conviction to aggravate his Arizona sentences under what is now A.R.S. § 13-702(C)(11).⁴Fagnant,176 Ariz. at 219, 860 P.2d at 486.Fagnant did not object at trial, but argued on appeal that the Washington conviction could not be used as an aggravating circumstance "without a showing that it would be a felony in Arizona."Id.The Court held that if the defendant fails to raise this "purely legal issue" at trial, "he or she may not raise [it] for the first time on appeal."Id.The Court went on to note that "[t]his rule is consistent with the doctrine that an appellate court will not address an issue for the first time on appeal unless the error is fundamental."Id.It then concluded that this "kind of error" was not fundamental.Id. at 220, 860 P.2d at 487.⁵

IV

¶ 16 Because Arizona's appellate courts have changed their approach to the type of sentencing errors addressed in Song and Fagnant, we reject the continuing applicability of those cases.

¶ 17 To begin, we note that Heath did not cite or overrule either Song or Fagnant.But Heath's holding evidenced a shift in our approach to such claims of error.198 Ariz. at 84, ¶ 4, 7 P.3d at 93.In the apparent absence of an objection in the trial court, Heath held that "whether a foreign conviction constitutes a felony in Arizona ... raises an issue of law."Id.

¶ 18 Moreover, since Song and Fagnant, this Court has found that legal error in other sentencing contexts constitutes fundamental error, reviewable as such on appeal despite the lack of an objection at trial.For example, in State v. Kelly,we agreed with a court of appeals' decision holding that improper use of two prior convictions committed on the same occasion⁶ constituted "fundamental error which can be raised for the first time on appeal."190 Ariz. 532, 534, ¶ 5, 950 P.2d 1153, 1155(1997)(citingState v. Graves,188 Ariz. 24, 27, 932 P.2d 289, 292(App.1996)).More recently, we stated that despite defense counsel's agreement that consecutive sentences were required, "[w]hen a trial court labors under a misunderstanding of the sentencing law, thinking that a consecutive sentence is mandatory rather than discretionary,...