State v. Johnson

240 Ariz. 402

380 P.3d 99

State of Arizona, Appellee,

v.Elias Dewayne Johnson, Appellant.

No. 1 CA–CR 15–0351

Court of Appeals of Arizona, Division 1.

FILED August 25, 2016

Arizona Attorney General's Office, Phoenix, By Alice Jones, Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix, By Terry Reid, Counsel for Appellant

Judge Maurice Portley delivered the opinion of the Court, in which Presiding Judge Margaret H. Downie and Judge Patricia K. Norris joined.

PORTLEY, Judge:

¶ 1 In this opinion, we address whether the superior court committed fundamental error by sentencing Elias Dewayne Johnson as a category three repetitive offender based on his six Colorado felony convictions. Because Johnson has shown no error, we affirm.¹

I

¶ 2 Johnson removed a "bait bike" from a city-owned pickup truck on April 23, 2014 and was convicted by a jury for burglary in the third degree, a class four felony. At sentencing, the State proved Johnson had six prior felony convictions from Colorado, and the superior court sentenced Johnson to an eight-year prison term as a category three repetitive offender.

II

¶ 3 Johnson argues his Colorado convictions did not "fall within the statutory definition of a historical prior felony conviction" under Arizona law because they occurred more than five years before he committed this burglary. As a result, he contends he is entitled to be resentenced because the superior court fundamentally erred in sentencing him as a category three repetitive offender under Arizona Revised Statutes ("A.R.S.") section 13–703 (J).²

¶ 4 We review issues of statutory interpretation de novo. State v. Peek , 219 Ariz. 182, 183, ¶ 6, 195 P.3d 641, 642 (2008) (citation omitted). When interpreting a statute, our goal is to give effect to the legislature's intent. Id . at 184, ¶ 11, 195 P.3d at 643 (citations omitted). We look first to the language of the statute because it is the best indication of the legislature's intent. Id . (citations omitted). If "the language is clear and unequivocal, it is determinative of the statute's construction." State v. Hansen , 215 Ariz. 287, 289, ¶ 7, 160 P.3d 166, 168 (2007) (quoting Deer Valley Unified Sch. Dist. No. 97 v. Houser , 214 Ariz. 293, 296, ¶ 8, 152 P.3d 490, 493 (2007) ); see also Indus. Comm'n v. Old Republic Ins. Co., 223 Ariz. 75, 77–78, ¶¶ 7–8, 219 P.3d 285, 287–88 (App. 2009) (noting we first look to the statute's plain language as the best indicator of legislative intent, and when statutory language is clear and unambiguous, we give effect to it and do not use other methods of statutory interpretation) (citations omitted). In construing sentencing statutes, we "accord substantial deference to the legislature and its policy judgments." State v. Berger , 212 Ariz. 473, 476, ¶ 13, 134 P.3d 378, 381 (2006).

¶ 5 The sentencing statute provides that "a person shall be sentenced as a category three repetitive offender if the person ... stands convicted of a felony and has two or more historical prior felony convictions." A.R.S. § 13–703(C) (West 2015).³ The issue then is whether Johnson's Colorado felony convictions are historical prior felony convictions under this Arizona statutory provision. He argues that his Colorado convictions, from 1989 to 2002, are outside the statutory five-year time limit in § 13–105(22)(e),⁴ and, as a result, cannot be considered historical prior felony convictions.

¶ 6 In 2012, our legislature modified § 13–703, entitled "Repetitive offenders; sentencing" by amending subsection (M), in relevant part, as follows:

M. For the purposes of ... subsection C of this section [category three repetitive offender], a person who has been convicted in any court outside the jurisdiction of this state of an offense that if committed in this state would be WAS punishable BY THAT JURISDICTION as a felony is subject to this section. A person who has been convicted as an adult of an offense punishable as a felony under the provisions of any prior code in this state OR THE JURISDICTION IN WHICH THE OFFENSE WAS COMMITTED is subject to this section.

2012 Ariz. Sess. Laws, ch. 190, § 2, (2d. Reg. Sess.).

¶ 7 The 2012 amendment to § 13–703(M) clearly demonstrates that our legislature changed our laws regarding enhanced criminal sentences so that trial courts can consider, for sentencing purposes, whether a defendant had one or more prior felony convictions from another state, or states, in order to determine whether the defendant was a repetitive offender under § 13–703(C). See State v. Moran , 232 Ariz. 528, 535, ¶ 21, 307 P.3d 95, 102 (App. 2013). And as relevant here, § 13–703(C) defined a category three repetitive offender as a defendant who "stands convicted of a felony and has two or more historical prior felony convictions." A.R.S. § 13–703(C).

¶ 8 At the time of Johnson's offense, a "historical prior felony conviction" included "[a]ny felony conviction that is a third or more prior felony conviction." A.R.S. § 13–105(22)(d) (West 2014). And we know from A.R.S. § 1–213 and State v. Jean , that the term "any" is to be broadly inclusive, has no "restrictions or limitations on the term modified," and, as a result the legislature's reference to any third felony conviction in § 13–105(22)(d) "included third felony convictions from any court of another state under § 13–703(M)." 2 CA–CR 2015–0184, 2016 WL 2864785, at *3, ¶ 12 (Ariz. App. May 16, 2016) (citation omitted).

¶ 9 Moreover, when the term "any felony conviction that is a third or more prior felony conviction" was addressed in its prior statutory form, A.R.S. § 13–604(U)(1)(d) (1996), see State v. Garcia , 189 Ariz. 510, 512 n.1, 943 P.2d 870, 872 n.1 (App. 1997), and later, A.R.S. § 13–604(V)(1)(d) (1999), see State v. Decenzo , 199 Ariz. 355, 357, ¶ 3, 18 P.3d 149, 151 (App. 2001), this court reiterated that "the legislature intended for trial courts to count prior felony convictions in chronological order and that the term third typically denotes the most recent item or occurrence in a series of three," id . at ¶ 5 (quoting Garcia , 189 Ariz. at 513, 943 P.2d at 873 ) (internal quotation marks omitted). Additionally, "once a person has been convicted of three felony offenses, the third in time can be used to enhance a later sentence, regardless of passage of time." Garcia , 189 Ariz. at 515, 943 P.2d at 875.

¶ 10 Applying the guidance from statute and case law, Johnson's third Colorado felony conviction would be his first historical prior felony conviction for sentencing purposes, his fourth Colorado felony conviction would be his second historical prior felony conviction, and his fifth Colorado felony conviction would be his third historical prior felony conviction, A.R.S. § 13–105(22)(d), requiring him to be sentenced as a category three repetitive offender under A.R.S. § 13–703(C). See Decenzo , 199 Ariz. at 358, ¶ 9, 18 P.3d at 152. Consequently, the trial court properly sentenced Johnson as a category three repetitive offender.

¶ 11 Johnson argues that the 2012 amendments also added a new definition to historical prior felony conviction; namely, as relevant here, "(e) Any offense committed outside the jurisdiction of this state that was punishable by that jurisdiction as a felony, that was committed within the five years immediately preceding the date of the present offense." A.R.S. § 13–105(22)(e) (West 2012); 2012 Ariz. Sess. Laws, ch. 190, § 1 (2nd Reg. Sess.). As a result, he argues that none of his Colorado felony convictions can be considered because his last Colorado felony conviction occurred more than five years before he removed the bicycle in this case, and, as a result, cannot be considered as a historical prior felony conviction under A.R.S. § 13–703(C).

¶ 12 His argument overlooks two factors. First, § 13–105 provides that its definitions are to control "unless the context otherwise requires." In State v. Thues , we found that "the context otherwise requires" a different definition of felony when determining that "possession of drug paraphernalia for personal use remains a felony when an offender is sentenced under Proposition 200." 203 Ariz. 339, 341, ¶ 9, 54 P.3d 368, 370 (App. 2002). Because the 2012 amendment to § 13–703(M), includes felonies committed outside of Arizona, the context of the statute supports our conclusion that the Colorado felonies are historical prior felonies as defined under § 13–105(22)(d).

¶ 13 Second, because § 13–703 is a specific sentencing statute applicable to repetitive offenders and § 13–703(M) defines the felonies, it has primacy over the general definitions in § 13–105. See Thues, 203 Ariz. at 341, ¶ 9, 54 P.3d at 370 (citing Ford v. State , 194 Ariz. 197, 199, ¶ 7, 979 P.2d 10, 12 (App. 1999), for the proposition that when general and specific statutes address same subject in contrasting manner, the more specific statute controls); see also State v. Davis , 119 Ariz. 529, 534, 582 P.2d 175, 180 (1978). Accordingly, given the 2012 amendment to § 13–703(M), we cannot judicially limit the application of § 13–105(22)(d) to only Arizona prior felony convictions in light of the legislature's specif ic intent to consider out-of-state felony convictions. See City of Phx. v. Donofrio , 99 Ariz. 130, 133, 407 P.2d 91, 93 (1965) ("[C]ourts will not read into a statute something which is not within the manifest intention of the legislature as gathered from the statute itself.") (citation omitted). We conclude, as a result, given the amendment to § 13–703(M), the plain language of § 13–105(22)(d) demonstrates a legislative intent that a third or more felony conviction from jurisdictions other than Arizona was, at the time of the offense in this case, to be considered a historical prior felony conviction. See Jean , 2 CA–CR 2015–0184, 2016 WL 2864785, at *3, ¶ 14 (stating that "[c]lear statutory text is determinative on the question of meaning.").

¶ 14 Although § 13–105(22)(e) was added in 2012, we have long held that the term "third or more...