State v. Hopson ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee/Cross- Appellant,
v.
DEJUAN MARKEISS HOPSON, Appellant/Cross-Appellee.
No. 1 CA-CR 20-0444
FILED 10-28-2021
Appeal from the Superior Court in Maricopa County
No. CR2018-139646-002
The Honorable Susanna C. Pineda, Judge
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Jana Zinman
Counsel for Appellee/Cross- Appellant
Maricopa County Public Defender’s Office, Phoenix
By Jeffrey L. Force
Counsel for Appellant/Cross-Appellee
STATE v. HOPSON
Decision of the Court
MEMORANDUM DECISION
Chief Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Samuel A. Thumma joined.
C A T T A N I, Chief Judge:
¶1 Dejuan Markeiss Hopson appeals his convictions for
misconduct involving weapons, arguing the superior court erred by
denying his motion to suppress evidence obtained during a traffic stop. The
State cross-appeals from the superior court’s sentencing ruling under A.R.S.
§ 13-708. For reasons that follow, we vacate Hopson’s sentence for Count 1
and remand for resentencing. In all other respects, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 In August 2018, a trooper with the Arizona Department of
Public Safety stopped Hopson for failing to remain within a traffic lane. See
A.R.S. § 28-729(1) (requiring a driver to remain “as nearly as practicable”
within one lane). Although Hopson denied having any weapons in the
vehicle, the trooper saw and seized an AR-15 pistol from near the front
driver’s seat. The only other occupant of the vehicle, Hopson’s girlfriend,
denied any knowledge of the pistol. At the time, Hopson was prohibited
from possessing weapons as a condition of his felony probation. His partial
fingerprint was later found on the pistol.
¶3 The State charged Hopson with two counts of misconduct
involving weapons: Count 1, a class 4 felony for possessing a firearm while
being a prohibited possessor, A.R.S. § 13-3102(A)(4), and Count 2, a class 1
misdemeanor for failing to accurately answer the trooper’s questions
regarding a concealed firearm, A.R.S. § 13-3102(A)(1)(b). Before trial, the
State further alleged that Hopson had committed these offenses while on
felony probation and while released on bond in a separate, pending felony
case.
¶4 A jury found Hopson guilty as charged. After a trial on
priors, the superior court sentenced Hopson on Count 1 as a Category 3
repetitive offender to a mitigated term of six years’ imprisonment, plus a
two-year enhancement, with credit for 748 days of presentence
incarceration. For Count 2, the court imposed a concurrent sentence of time
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STATE v. HOPSON
Decision of the Court
served. The court ordered that the sentences run concurrently with
sentences imposed for Hopson’s probation violations.
¶5 Hopson timely appealed, and the State cross-appealed. We
have jurisdiction under A.R.S. §§ 13-4032(5) and -4033(A)(1).
DISCUSSION
I. Motion to Suppress.
¶6 Hopson argues the superior court erred by denying his
motion to suppress evidence obtained in what he claims was an illegal
traffic stop. Relying on State v. Livingston, 206 Ariz. 145 (App. 2003),
Hopson claims the trooper lacked a sufficient basis to stop his vehicle for
an alleged lane line violation under A.R.S. § 28-729(1). We review the
superior court’s suppression ruling for an abuse of discretion, considering
only the evidence presented at the suppression hearing and viewing it in
the light most favorable to upholding the ruling. State v. Angulo-Chavez, 247
Ariz. 255, 258, ¶ 6 (App. 2019). We defer to the superior court’s factual
findings and credibility determinations, but we review its legal conclusions
de novo. See State v. Gonzalez-Gutierrez, 187 Ariz. 116, 118 (1996).
¶7 At the suppression hearing, the trooper testified that he saw
Hopson drift in and out of the far-left lane of the interstate, crossing the
marked lines at least five times. Hopson continued to drift in and out of his
lane while the trooper drove next to him and saw him looking down at a
cell phone.
¶8 Hopson testified at the suppression hearing and denied
committing any traffic violations. He admitted, however, that he was
driving even though he had a suspended license, that he had prior felony
convictions, and that he was on probation at the time of the stop. Hopson
stated that his girlfriend would corroborate his testimony, but she did not
testify at the suppression hearing.
¶9 The superior court denied Hopson’s motion to suppress,
finding that the trooper’s observation of multiple lane line violations
provided a valid basis for the stop. The court further noted that the
trooper’s testimony was consistent with his original incident report.
¶10 A traffic stop is valid if a lawful, objective reason exists to
initiate the stop. State v. Swanson, 172 Ariz. 579, 582 (App. 1992). And a
traffic violation—here, failing to remain within a single lane—is one such
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Decision of the Court
objective basis to stop a vehicle. State v. Acosta, 166 Ariz. 254, 257 (App.
1990).
¶11 Hopson argues that, under Livingston, his alleged traffic
violations were insufficient to justify a stop. In Livingston, we construed
§ 28-729(1)’s conditional language (the requirement to remain “as nearly as
practicable” within a single lane) as evincing the Legislature’s intent to
avoid penalizing “brief, momentary, and minor deviations outside the
marked lines.” Livingston, 206 Ariz. at 148, ¶ 10. We thus affirmed the
superior court’s ruling in that case that the driver’s “isolated and minor
breach of the shoulder line” on a curved road did not give the officer a
sufficient basis to initiate a traffic stop. Id. at ¶ 12.
¶12 Here, in contrast, there was more than just an isolated and
minor deviation from the marked lines. Hopson crossed the marked lane
lines at least five times, which the trooper characterized as “extensive lane
usage violations.” Hopson’s repeated deviation from the marked lines
provided a sufficient objective basis to initiate the traffic stop for violation
of A.R.S. § 28-729(1). See Acosta, 166 Ariz. at 256–57 (crossing the dividing
line at least six times provided a sufficient basis for a traffic stop). To the
extent Hopson attacks the trooper’s credibility based on his own, different
version of events, the superior court found the trooper’s testimony to be
reliable, and we defer to that credibility determination. See Gonzalez-
Gutierrez, 187 Ariz. at 118. Accordingly, the superior court did not err by
denying Hopson’s motion to suppress.
II. State’s Cross-Appeal.
¶13 On cross-appeal, the State contends the superior court erred
by refusing to apply the mandatory sentence enhancements of A.R.S. § 13-
708(C)–(E) to Hopson’s sentence for Count 1. As relevant here, three
subsections of A.R.S. § 13-708 set forth separate sentence enhancements
applicable to offenses committed while released from confinement. First,
subsection (C) requires a sentence of no less than the presumptive term for
a felony offense committed while on felony probation. Second, subsection
(E) requires that any sentence imposed under subsection (C) run
consecutively to the sentence imposed in the probation case. And third,
subsection (D) requires an additional two years of imprisonment for a
felony offense committed while released on bond for a separate felony
offense. These sentence enhancements are mandatory. See State v.
Piotrowski, 233 Ariz. 595, 598–99, ¶¶ 13–17 (App. 2014).
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Decision of the Court
¶14 The State alleged that Hopson committed Count 1 (the felony
offense) while on felony probation in a prior case (“2014 case”) and while
released on bond in another case (“2018 case”), and the State argued that all
three sentence enhancements in A.R.S. § 13-708(C), (D), and (E) applied.
The superior court found all sentencing allegations proven but did not
impose the sentence enhancements required by subsections (C) and (E).
The superior court reasoned that, because the State had used Hopson’s
probation status in the 2014 case to prove that he was a prohibited possessor
(an element of Count 1), see A.R.S. §§ 13-3101(A)(7)(d), -3102 (A)(4),
imposing an enhanced sentence on that basis would constitute unlawful
double punishment, see A.R.S. § 13-116. The superior court instead
sentenced Hopson to a mitigated term of six years’ imprisonment, to be
served concurrently with the sentence in his 2014 case. See A.R.S. § 13-
703(C), (J). The court did, however, apply the subsection (D) enhancement
and impose an additional two years’ imprisonment.1
¶15 Contrary to the superior court’s concern, sentence
enhancements do not offend principles of double jeopardy. See State v. Bly,
127 Ariz. 370, 371–73 (1980); State v. Harm, 236 Ariz. 402, 408, ¶ 23 (App.
2015). And we have previously concluded that a single fact may be used
both as an element of the offense (or an aggravating factor) and as a basis
for sentence enhancement without violating the double punishment
prohibition of A.R.S. § 13-116. See State v. Greene, 182 Ariz. 576, 580 (1995);
State v. Garcia, 176 Ariz. 231, 234 (App. 1993). Moreover, State v. Watson,
248 Ariz. 208 (App. 2020), on which the superior court relied, is inapposite.
There, we held that A.R.S. § 13-116 barred a consecutive probation term for
convictions based on the same act, prosecuted in the same case. Watson, 248
Ariz. at 214–16, ¶¶ 17–22. Here, in contrast, the required sentence
enhancements arose out of Hopson’s probation status in an unrelated case.
Thus, the holding in Watson does not apply, and the imposition of sentence
enhancements under A.R.S. § 13-708 does not trigger double jeopardy or
A.R.S. § 13-116 protections.
1 Although the State argues that the superior court failed to impose
the additional-two-year enhancement required by A.R.S. § 13-708(D), the
court’s oral pronouncement of sentence expressly ordered “the mitigated
term of six years plus the two years that is required.” Although the written
sentencing order does not include this finding or list the six plus two years
separately, the “[o]ral pronouncement in open court controls over the
minute entry.” State v. Whitney, 159 Ariz. 476, 487 (1989) (citation omitted).
The superior court conformed to the mandatory language of A.R.S. § 13-
708(D).
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¶16 The superior court was required to impose the enhancements
specified in A.R.S. § 13-708(C) and (E). See State v. Harris, 133 Ariz. 30, 31
(App. 1982) (“Courts have power to impose sentences only as authorized
by statute and within the limits set down by the legislature.”). Therefore,
the superior court’s failure to apply A.R.S. § 13-708(C) and (E), over the
State’s objection, was error requiring a new sentencing. See State v. Carbajal,
184 Ariz. 117, 118 (App. 1995) (“The failure to impose a sentence in
conformity with mandatory sentencing statutes makes the resulting
sentence illegal.”). On remand, Hopson must be sentenced as required by
A.R.S. § 13-708(C) to no less than the presumptive term of imprisonment
for a category three repetitive offender, plus the two-year enhancement
under A.R.S. § 13-708(D), and, as required by A.R.S. § 13-708(E), that term
of imprisonment must run consecutively to his sentence in the 2014 case.
CONCLUSION
¶17 We vacate Hopson’s sentence for Count 1 and remand for
resentencing consistent with this decision. In all other respects, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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