State v. Carpio

STATE OF ARIZONA, Appellee, v. MANUEL CARPIO, Appellant.

No. 1 CA-CR 15-0635

ARIZONA COURT OF APPEALS DIVISION ONE

June 22, 2017

NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

Appeal from the Superior Court in Maricopa County

No. CR2014-137941-002

The Honorable Danielle J. Viola, Judge

The Honorable John R. Ditsworth, Retired Judge

VACATED IN PART; AFFIRMED IN PART

COUNSEL

Arizona Attorney General's Office, Phoenix

By Elizabeth B. N. Garcia

Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix

By Nicholaus Podsiadlik

Counsel for Appellant

MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in which Judge Patricia K. Norris and Judge Paul J. McMurdie joined.

JONES, Judge:

¶1 Manuel Carpio appeals his convictions and sentences for one count of disorderly conduct and one count of unlawful flight from a law enforcement vehicle. Carpio, a member of the Gila River Indian Community (the Community), argues the superior court did not have subject matter jurisdiction over the disorderly conduct offense because he committed it entirely within the Gila River Indian Reservation (the Reservation). He also argues the superior court did not have personal jurisdiction because he was removed from the Reservation in violation of tribal extradition procedures after he was pursued onto the Reservation following a "hot pursuit" that began in the City of Chandler (the City). For the following reasons, we vacate Carpio's conviction and sentence for disorderly conduct and affirm his conviction and sentence for unlawful flight from a law enforcement vehicle.

FACTS¹ AND PROCEDURAL HISTORY

¶2 In August 2014, while investigating an unrelated crime, a City police officer observed a vehicle driven by a man later identified as Carpio approaching him on the opposite side of a two-lane commercial driveway. The officer shone his spotlight at Carpio's vehicle, activated his lights, and parked partially in Carpio's lane. Carpio saw the law enforcement vehicle but did not stop; instead, he "made an evasive turn the other way and drove right past" the vehicle. The officer made a U-turn, activated the siren on his marked patrol vehicle behind Carpio's vehicle and followed it through the City at approximately seventy miles per hour. The pursuit continued onto the Reservation. Carpio stopped at a "T" intersection on the Reservation and, when the officer was one or two car-lengths away, reversed directionand struck the patrol vehicle. After a second collision propelled Carpio's vehicle into a canal, he was taken into custody and removed from the Reservation by City police.

¶3 A Maricopa County grand jury indicted Carpio on one count of aggravated assault of a police officer, arising from the first collision on the Reservation, and one count of unlawful flight from a pursuing law enforcement vehicle. See Ariz. Rev. Stat. (A.R.S.) §§ 13-1204(A),² 28-622.01. Carpio moved to dismiss the charges, arguing the superior court lacked jurisdiction over his person and the offenses, but the court denied the motion. A jury acquitted Carpio of aggravated assault but convicted him of the lesser-included offense of disorderly conduct,³ as well as unlawful flight.

¶4 Carpio was sentenced as a dangerous, non-repetitive offender to concurrent, presumptive terms of one-and-a-half years' imprisonment and given credit for ninety days of presentence incarceration credit. Carpio timely appealed, and we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).

DISCUSSION

I. Disorderly Conduct

¶5 Carpio argues the superior court lacked subject matter jurisdiction to try him for disorderly conduct because that offense occurred entirely on the Reservation. The existence of subject matter jurisdiction presents a question of law, which we review de novo. State v. Flores, 218Ariz. 407, 410, ¶ 6 (App. 2008) (citing State v. Sorkhabi, 202 Ariz. 450, 452, ¶ 5 (App. 2002), and In re Marriage of Crawford, 180 Ariz. 324, 326 (App. 1994)).

¶6 Native American tribes are sovereign nations and have the right to govern themselves. Williams v. Lee, 358 U.S. 217, 220, 223 (1959); S. Unique, Ltd. v. Gila River Pima-Maricopa Indian Cmty., 138 Ariz. 378, 381-82 (App. 1983)). Thus, "[i]f [the] defendant or the victim is an Indian and the crime was committed within Indian country, . . . then the state superior court has no subject matter jurisdiction to try [the] defendant for the offense." State v. Verdugo, 183 Ariz. 135, 137 (App. 1995) (citing the Indian Country Crimes Act (ICCA), 18 U.S.C. §§ 1152-53). Rather, the federal court has exclusive jurisdiction over "[a]ny Indian who commits against the person or property of another Indian or other person . . . a felony assault under [18 U.S.C. § 113]." 18 U.S.C. § 1153(a); see also Ariz. Const. art. 20, ¶ 4 (disclaiming state jurisdiction over Indians and Indian land and recognizing that "the same shall be, and remain, subject to the disposition and under the absolute jurisdiction and control of the Congress of the United States"); State v. Robles, 183 Ariz. 170, 174 (App. 1995) (noting the ICCA was "intended to bestow exclusive preemptive jurisdiction on the federal courts only when the crime occurs on a federal enclave and when no elements of the crime occur outside that enclave"); State v. Lupe, 181 Ariz. 211, 214 (App. 1994) ("Most matters dealing with Native American reservations are within the exclusive jurisdiction of the tribal or federal courts unless falling specifically within the state's jurisdiction as directed or allowed by an act of Congress.") (citing State ex rel. Old Elk v. District Court, 552 P.2d 1394, 1396 (Mont. 1976)).

¶7 The State concedes Carpio committed the acts giving rise to the aggravated assault charge and his subsequent conviction for disorderly conduct wholly within the territorial boundaries of the Reservation. Because the offense was committed by an Indian⁴ entirely on tribal land, the superior court lacked subject matter jurisdiction to try Carpio for the offense, and the judgment of guilt is void. See State v. Cramer, 192 Ariz. 150, 153, ¶ 16 (App. 1998) (citing Martin v. Martin, 182 Ariz. 11, 15 (App. 1994)).

We therefore vacate Carpio's conviction and sentence for disorderly conduct.⁵

II. Unlawful Flight

¶8 Carpio also argues the superior court lacked jurisdiction over his person with respect to the unlawful flight offense because the City police removed him from the Reservation in violation of the Community's extradition procedures.⁶ Whether the court has personal jurisdiction presents a legal question subject to de novo review. Hoag v. French, 238 Ariz. 118, 122, ¶ 17 (App. 2015) (citing Duckstein v. Wolf, 230 Ariz. 227, 233, ¶ 19 (App. 2012)). We also review the interpretation and application of the relevant statutes and agreements de novo. Id. at 121, ¶ 10 (statutes) (citing Obregon v. Indus. Comm'n, 217 Ariz. 612, 614, ¶ 9 (App. 2008)); State v. Burkett, 179 Ariz. 109, 111 (App. 1993) (agreements) (citations omitted). In doing so, we look first to the plain meaning of the words contained therein. See State v. Bon, 236 Ariz. 249, 251, ¶ 6 (App. 2014) (quoting State v. Hinden, 224 Ariz. 508, 510, ¶ 9 (App. 2010)); Great W. Bank v. LJC Dev., L.L.C., 238 Ariz. 470, 475, ¶ 9 (App. 2015) (citing ELM Ret. Ctr., L.P. v. Callaway, 226 Ariz. 287, 290-91, ¶ 15 (App. 2010)).

¶9 Notwithstanding Arizona's general disclaimer of jurisdiction over Indians, their land, and their general right to self-governance, see supra ¶ 6, Arizona state courts have jurisdiction over crimes committed, in whole or in part, within Arizona's territorial borders. A.R.S. § 13-108; Verdugo, 183 Ariz. at 137 (citing State v. Vaughn, 163 Ariz. 200, 203 (App. 1989)). Indeed, "[t]he State has a particularly strong policy interest in not allowing suspects to narrowly escape arrest and avoid this State's jurisdiction over offenses committed within this State by fleeing across the border to another jurisdiction." Lupe, 181 Ariz. at 214. Thus, if a person is arrested on thereservation after a "hot pursuit" that began on state land, the superior court's personal jurisdiction turns on whether the state's actions in procuring the person of the defendant interfered with tribal sovereignty. See id. (citing Village of Kake v. Egan, 369 U.S. 60, 67-68 (1962)); see also Begay v. Roberts, 167 Ariz. 375, 378-79 (App. 1990) ("[T]he ultimate question is whether the exercise of state court jurisdiction in a given case will 'frustrate federal policy or violate traditional notions of tribal sovereignty.'") (quoting Smith Plumbing Co. v. Aetna Cas. & Sur. Co., 149 Ariz. 524, 529 (1986)). If a tribe has not enacted laws requiring the state to follow extradition procedures in a hot pursuit situation, there is no interference with the tribe's right to make and be ruled by its own laws or the tribe's power to regulate its internal and social relations. Lupe, 181 Ariz. at 214 (quoting New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 332 (1983), and citing Montana v. United States, 450 U.S. 544, 564 (1981)); Arizona ex rel. Merrill v. Turtle, 413 F.2d 683, 685-86 (9th Cir. 1969) (recognizing "[t]he essential and intimate relationship of control of the extradition process to the right of self-government") (citation omitted). Such is the case here.

¶10 At the time of the alleged offenses, the City and Community were bound by a Mutual Aid Agreement executed in June 2011 (the 2011 Agreement). See A.R.S. § 13-3872 (authorizing two or more law enforcement agencies to enter into mutual aid agreements). The 2011 Agreement provided that City and Community officers would assist each other upon request. Additionally, the 2011 Agreement provides:

[City] officers . . . who enter onto the Reservation while engaged in the "HOT PURSUIT" of a fleeing suspect of an alleged offense that occurred within the Reservation may

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