State v. Thomas

175 P.3d 71, 217 Ariz. 413, 522 Ariz. Adv. Rep. 3, 2008 Ariz. App. LEXIS 11
CourtCourt of Appeals of Arizona
DecidedJanuary 29, 2008
Docket1 CA-CR 05-0770
StatusPublished
Cited by4 cases

This text of 175 P.3d 71 (State v. Thomas) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Thomas, 175 P.3d 71, 217 Ariz. 413, 522 Ariz. Adv. Rep. 3, 2008 Ariz. App. LEXIS 11 (Ark. Ct. App. 2008).

Opinions

OPINION

SNOW, J.

¶ 1 Marcel Barry Thomas appeals his convictions and sentences for the possession of dangerous drugs for sale, narcotics, drug paraphernalia, and marijuana. His lawyer found no arguable ground for reversal and filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Anders requires us to search the record for reversible error. Id. at 744, 87 S.Ct. 1396. We find no fundamental error pertaining to Thomas’s convictions. However, we ordered supplemental briefing on an issue pertaining to Thomas’s sentencing. Because we conclude that the trial court fundamentally erred in sentencing Thomas, we vacate the sentence and remand for resentencing.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 The drug-related charges on which Thomas was sentenced arose from a search of Thomas’s apartment that occurred on December 18, 2002. Based on the evidence found during the search and Thomas’s statements to the police at that time, a grand jury indicted Thomas on four drug-related charges a year and a half later in June 2004. Thomas was indicted for possession of dangerous drugs for sale, a class two felony; possession of narcotic drugs, a class four felony; possession of drug paraphernalia, a class six felony; and possession of marijuana, a class six felony (“the drug-related charges”). Thomas was eventually tried and convicted on these charges in June 2005.

¶ 3 In January 2003, approximately one month after the police searched Thomas’s apartment and found the drugs and paraphernalia for which he was subsequently indicted, Thomas committed acts that resulted in charges being brought against him for aggravated assault, unlawful imprisonment, and hindering prosecution. Thomas was tried and convicted of these crimes in July 2004, almost a year before he was tried on the drug-related charges. After Thomas was convicted of these offenses and prior to his trial on the drug-related charges, the State submitted an addendum to the indictment on the December 2002 drug-related offenses seeking to add each of the convictions resulting from the January 2003 events as historical prior felony convictions.

¶ 4 Thomas objected because the January 2003 offenses occurred after the December 2002 drug-related offenses and thus could not constitute historical prior felony convictions. After a hearing, the court determined that to constitute a “prior historical felony conviction,” a class two, three, four or five felony must normally be committed prior to the commission of the offense on which the State seeks to enhance the sentence. Nevertheless, the court also concluded that, pursuant to the statutory definition, certain felony charges, regardless of their class, could constitute historical prior felony convictions even if they were committed after the offense for which the defendant was charged. Thus, in this case, the court determined that the unlawful imprisonment and the hindering prosecution charges could not constitute historical prior felony convictions pursuant to Arizona Revised Statutes (“A.R.S.”) section 13-604(W)(2)(b), (c) (Supp.2007) because the offenses occurred after the acts on which the drug-related charges were based. But it also determined that the aggravated assault charge, even though it also occurred after the drug-related offenses, could nevertheless constitute an historical prior felony conviction pursuant to A.R.S. § 13-604(W)(2)(a) because it carried with it a term of mandatory imprisonment. Thus, pursuant to § 13-604, the court sentenced Thomas to enhanced presumptive concurrent sentences on all four drug counts as follows: 9.25 years for the possession of dangerous drugs for sale, 4.5 years for the possession of narcotics, 1.75 years for the possession of drug para[415]*415phernalia, and 1.75 years for the possession of marijuana.1

¶ 5 We have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031 (2001), and 13-4033(A)(1) (2001). We hold that the trial court erred when it sentenced Thomas pursuant to A.R.S. § 13-604 based on its determination that his aggravated assault conviction constituted an “historical prior felony conviction” even though it occurred after the drug-related crimes for which Thomas was convicted. Because sentencing error generally constitutes fundamental error, we vacate Thomas’s sentence and remand for resentencing. See State v. Hollenback, 212 Ariz. 12, 16, ¶ 12, 126 P.3d 159, 163 (App.2005) (holding that the “imposition of an illegal sentence is fundamental error”) (citation omitted).

ANALYSIS

¶ 6 “Section 13-604 provides enhanced sentences for defendants who are convicted of a felony and have a ‘historical prior felony conviction.’” State ex rel. Romley v. Hauser, 209 Ariz. 539, 541, ¶ 8, 105 P.3d 1158, 1160 (2005). Not all of a defendant’s previous felony convictions, however, will necessarily qualify as “historical prior felony convictions” because “whether a prior felony conviction falls within the definition of ‘historical prior felony conviction’ in § 13-604(V)[2] generally depends on the seriousness and age of the prior offense.” Id.

¶ 7 Section 13-604(W)(2) defines four different types of felony convictions as “historical prior felony convictions” depending upon the seriousness of the past offense and the time that has lapsed between that offense and the offense for which the defendant is charged. The first subcategory of “historical prior felony convictions,” includes “[a]ny pri- or felony conviction” for six types of designated offenses regardless of by how much the commission of the offense preceded the offense for which the defendant is charged.3 A.R.S. § 13-604(W)(2)(a). The second subcategory defines class two or three felonies as “historical prior felony convictions” if the offense resulting in the prior conviction “was committed within the ten years immediately preceding the date of the present offense.” A.R.S. § 13-604(W)(2)(b). The third subeategory, pertaining to generally less serious felonies, defines class four, five or six felonies as “historical prior felony convictions” if the offense resulting in the conviction “was committed within the five years immediately preceding the date of the present offense.” A.R.S. § 13-604(W)(2)(c). The fourth designates any conviction “that is a third or more prior felony conviction” as an historical prior felony conviction regardless of whether it meets other criteria. A.R.S. § 13-604(W)(2)(d).4

[416]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Thomas
194 P.3d 394 (Arizona Supreme Court, 2008)
Yollin v. City of Glendale
191 P.3d 1040 (Court of Appeals of Arizona, 2008)
In Re Estate of Newman
196 P.3d 863 (Court of Appeals of Arizona, 2008)
State v. Thomas
175 P.3d 71 (Court of Appeals of Arizona, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
175 P.3d 71, 217 Ariz. 413, 522 Ariz. Adv. Rep. 3, 2008 Ariz. App. LEXIS 11, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-thomas-arizctapp-2008.