The State Of Ariz. v. Francis

• Citation: 224 Ariz. 369,231 P.3d 373
• Decision Date: 22 April 2010
• Docket Number: No. 2 CA-CR 2009-0020.,2 CA-CR 2009-0020.
• Parties: The STATE of Arizona, Appellee,v.Christopher Wayne FRANCIS, Appellant.
• Court: Arizona Court of Appeals

224 Ariz. 369

231 P.3d 373

The STATE of Arizona, Appellee,v.Christopher Wayne FRANCIS, Appellant.

No. 2 CA-CR 2009-0020.

Court of Appeals of Arizona,

Division 2, Department A.

April 22, 2010.

Terry Goddard, Arizona Attorney General By Kent E. Cattani and Amy M. Thorson, Tucson, Attorneys for Appellee.

Isabel G. Garcia, Pima County Legal Defender By Robb P. Holmes, Tucson, Attorneys for Appellant.

OPINION

KELLY, Judge.

¶ 1 After a jury trial, Christopher Francis was convicted of multiple felony charges related to his involvement in marijuana trafficking. The trial court sentenced him under A.R.S. § 13-3419 for multiple drug offenses committed on separate occasions and consolidated for trial. On appeal, he contends the court improperly imposed enhanced sentences for several of his convictions.¹ We affirm.

Background

¶ 2 “We view the facts and all reasonable inferences therefrom in the light most favorable to upholding the verdicts.” See State v. Tamplin, 195 Ariz. 246, ¶ 2, 986 P.2d 914, 914 (App.1999). In September 2006, a police officer observing suspected drug transportation activity saw appellant Francis and his codefendant Monica Guzman enter a house on Calle Lado Al Rio in Tucson. Francis and Guzman left shortly thereafter in one car, following a second car driven by codefendant Rohan Butler. Officers followed Butler to a house on Camino Laguna Seca and conducted a “knock and talk” investigation.

¶ 3 When Butler answered the door, he was talking on several cellular telephones. He told the officers he was visiting the house and his friend “Michael” lived there. While talking to officers, Butler answered a call and told them the caller said the police did not have a warrant and Butler could not let them in the house. At the same time, other officers found two bales of marijuana behind the back wall of the house and saw footprints leading from the back door to the bales.

¶ 4 After officers obtained warrants to search both houses, they first searched the Laguna Seca house and found documents bearing Francis's name, photographs of Francis and Guzman, letters addressed to individuals at the Calle Lado Al Rio address, marijuana, ledgers, a digital scale, and packing materials. In the master bedroom, they found a drug ledger and shipping receipts in Francis's handwriting, with the Calle Lado Al Rio address. They also found $12,940 in cash and two handguns in the master bedroom closet.

¶ 5 When officers searched the house on Calle Lado Al Rio, they found it unoccupied and sparsely furnished. In it they found a pistol, wooden crates, shipping boxes, a fifty-pound digital scale, marijuana, some ledgers, and a piece of cardboard with Francis's handwriting on it. Francis was indicted, and a warrant issued for his arrest.

¶ 6 In April 2007, while these charges were pending, the Drug Enforcement Administration (DEA) received an unrelated tip from a local trucking company about a suspicious shipment. An undercover agent accompanied a trucking company employee to a house on Placita Brisa Grande in Tucson to pick up several shipping crates suspected to contain drugs. The crates contained approximately 1,200 pounds of marijuana. Officers saw codefendant Mark Prehay meet the truck, oversee its loading, and leave in a car with Francis shortly after the truck left. Agents later found trucking company receipts, drug ledgers, packaging materials, air fresheners, and a gun inside this house. Based on the shipping dates on various receipts found at the three residences, mostly in Francis's handwriting, the state learned when other shipments of marijuana had been made. One receipt listed a shipment of 310 pounds from the same address, which DEA agents in Pennsylvania had intercepted and found to contain 310 pounds of marijuana.

¶ 7 The state obtained a second indictment encompassing both the charges from the first indictment and new transportation charges alleged after the April 2007 incident.² The state charged Francis with thirteen felony counts, including one count of conspiracy to commit possession and/or transportation of marijuana for sale, one count of possession of a deadly weapon during the commission of a felony drug offense, one count of possession of marijuana for sale, and ten counts of transportation of marijuana for sale.

¶ 8 After a twelve-day trial, the jury found Francis guilty of all counts except three counts of transporting marijuana for sale.³ The trial court imposed a combination of consecutive and concurrent, presumptive sentences under § 13-3419, totaling fourteen years' imprisonment. This appeal followed.

Discussion

¶ 9 Francis contends the trial court improperly enhanced his sentences because he had received no notice of the state's intent to seek sentence enhancements before trial. The state did not cite § 13-3419 ⁴ in the indictment nor did it file a separate allegation related to that statute. But the indictment charged Francis with multiple drug offenses committed on different days. After counsel argued to the court whether § 13-3419 could be applied, the court sentenced Francis under that statute. “Sentencing determinations are reviewed for abuse of discretion,” State v. Davolt, 207 Ariz. 191, ¶ 112, 84 P.3d 456, 481 (2004), but we review questions of statutory interpretation de novo. State v. Benak, 199 Ariz. 333, ¶ 9, 18 P.3d 127, 129 (App.2001).

¶ 10 Section 13-3419 provides that a defendant convicted of two or more of certain drug-possession offenses “that were not committed on the same occasion but ... are consolidated for trial” is subject to the sentencing range set forth in that statute. For Francis's class two felonies involving more than the statutory threshold amount of drugs, the presumptive sentence under § 13-3419 is five years for a defendant convicted of two offenses and seven years for a defendant convicted of three or more offenses. § 13-3419.⁵

¶ 11 As Francis concedes, “no court has specifically addressed the notice required to apply a sentence enhancement under ... § 13-3419.” But, as he also points out, courts have required the state to give defendants notice if it wishes to enhance a sentence pursuant to other statutes. In requiring notice, courts have expressed concern about fundamental fairness and due process. See Benak, 199 Ariz. 333, ¶ 14, 18 P.3d at 130-31; State v. Guytan, 192 Ariz. 514, ¶ 32, 968 P.2d 587, 595-96 (1998). To satisfy those concerns and allow a defendant to decide whether to accept a plea, the “ ‘defendant should know the full extent of the potential punishment that he faces before trial.’ ” State v. Waggoner, 144 Ariz. 237, 238-39, 697 P.2d 320, 321-22 (1985) quoting State v. Rodgers, 134 Ariz. 296, 306, 655 P.2d 1348, 1358 (App.1982).

¶ 12 To that end, in the context of sentences enhanced by prior convictions, courts have required “[n]otice ... such that the defendant is not ‘misled, surprised or deceived in any way by the allegations' of prior convictions.” Benak, 199 Ariz. 333, ¶ 16, 18 P.3d at 131 quoting State v. Bayliss, 146 Ariz. 218, 219, 704 P.2d 1363, 1364 (App.1985). The state is also required to provide notice before trial that it intends to seek enhanced punishment for offenses committed while a defendant is on “release status.” Waggoner, 144 Ariz. at 239, 697 P.2d at 322. Likewise, the state must specifically allege that it seeks enhancements for violent crimes, gang motivation, dangerous crimes against children, or dangerous offenses. See A.R.S. § 13-901.03 (violent crimes); Guytan, 192 Ariz. 514, ¶ 37, 968 P.2d at 596 (gang involvement); State v. Hollenback, 212 Ariz. 12, ¶¶ 9-11, 126 P.3d 159, 162-63 (App.2005) (dangerous crimes against children); State v. Paredes, 181 Ariz. 47, 51, 887 P.2d 577, 581 (App.1994) (dangerousness).

¶ 13 In State v. Tresize, however, our supreme court ruled that a defendant had sufficient notice a sentencing enhancement would apply when the state alleged the use of a deadly weapon or dangerous instrument in the indictment even though it did not make a separate allegation or include a citation to the relevant statute in the indictment. 127 Ariz. 571, 574, 623 P.2d 1, 4 (1980). The facts necessary to support sentencing Tresize under the enhancement statute were alleged in the indictment and the court therefore found “no resulting prejudice or surprise from the omission of the citation.” Id. Although in this case the state did not file a separate allegation citing § 13-3419, the indictment gave Francis notice that he was charged in a single cause with multiple drug offenses committed on different days, thereby alleging all the facts necessary to satisfy § 13-3419. See id. Unlike the true enhancement statutes discussed above, which require proof of an additional fact not required to prove the underlying offenses, such as the age of a child victim or conviction of a violent offense, § 13-3419 does not require proof of any facts beyond those necessary for the underlying drug convictions.

¶ 14 Indeed, § 13-3419 is “the exclusive sentencing provision for multiple drug offenses not committed on the same occasion but consolidated for trial.” State v. Dominguez, 192 Ariz. 461, ¶ 8, 967 P.2d 136, 139 (App.1998). Further, “Arizona courts have a duty to impose a sentence authorized by statute and within the limits set by the legislature.” State v. Monaco, 207 Ariz. 75, ¶ 9, 83 P.3d 553, 556 (App.2004). Because Francis was charged with multiple drug offenses committed on different days, the provisions of § 13-3419 applied to him whether or not the state separately alleged the statute. Cf. Bolton v. Superior Court, 190 Ariz. 201, 203, 945 P.2d 1332, 1334 (App.1997) (defendant's eligibility for probation-only sentencing under A.R.S. § 13-901.01, “is a matter of law to be decided by the court ... not a matter of pleading or plea bargaining to be decided by the State”).

¶ 15 Because the indictment alleged all the facts necessary for the trial court to sentence Francis under § 13-3419, the exclusive sentencing...