State v. Shoemaker ( 2020 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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, Respondent,
v.
JON JEFFREY SHOEMAKER, Petitioner.
No. 1 CA-CR 20-0283 PRPC
FILED 11-3-2020
Petition for Review from the Superior Court in Yavapai County
No. P1300CR201700740
The Honorable Tina R. Ainley, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Yavapai County Attorney’s Office, Prescott
By Lewis Andrew Citrenbaum
Counsel for Respondent
Jon Jeffrey Shoemaker, Florence
Petitioner
MEMORANDUM DECISION
Presiding Judge James B. Morse Jr., Judge Maria Elena Cruz, and Judge Paul
J. McMurdie delivered the decision of the court.
STATE v. SHOEMAKER
Decision of the Court
PER CURIAM:
¶1 Petitioner Jon Jeffrey Shoemaker petitions this court for
review from the dismissal of his petition for post-conviction relief. Absent
an abuse of discretion or error of law, this court will not disturb the superior
court’s ruling on a petition for post-conviction relief. State v. Gutierrez, 229
Ariz. 573, 577, ¶ 19 (2012). However, we review issues of statutory
interpretation de novo. State v. Peek, 219 Ariz. 182, 183, ¶ 6 (2008) (citation
omitted). We have considered the petition for review and, for the reasons
stated, deny relief.
¶2 Shoemaker was charged with sale or transportation of
dangerous drugs, a Class 2 felony (Count 1); sale or transportation of
narcotic drugs, a Class 2 felony (Count 3); two counts of possession of drug
paraphernalia, Class 6 felonies (Counts 2 and 4); and tampering with
physical evidence, a Class 6 felony (Count 5), all occurring on March 11,
2017. The State filed an allegation of prior convictions, alleging the
following prior felony convictions:
(1) On May 26, 1994, Shoemaker was convicted of possession of a
controlled substance and three counts of possession of a bad check
or money order, occurring on August 9, 1993 in California (“1994
California convictions”);
(2) On May 18, 2000, Shoemaker was convicted of sexual penetration
with a foreign object with a victim under 16 years of age and child
stealing, occurring on January 9, 2000 in California (“2000 California
convictions”); and
(3) On May 18, 2004, Shoemaker was convicted of sexual conduct with
a minor, a Class 3 felony, occurring on October 30, 1999 in Arizona
(“2004 Maricopa conviction”).
¶3 The State later filed an amended allegation of prior
convictions, adding that on April 12, 2018, Shoemaker was convicted of
conspiracy to commit possession of dangerous drugs for sale, a Class 2
felony, occurring on July 6, 2017 in Arizona (“2018 Maricopa conviction”).
¶4 On April 3, 2019, Shoemaker pled guilty to Count 1 without
historical prior felony convictions, and guilty to Counts 2-5 with two
historical priors. He admitted to four prior felony convictions: possession
of a controlled substance (1994 California conviction), sexual penetration
with a foreign object and child stealing (2000 California convictions), and
sexual conduct with a minor (2004 Maricopa conviction). The superior
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STATE v. SHOEMAKER
Decision of the Court
court sentenced Shoemaker to seven years, to be served without eligibility
for early-release credits, for sale or transportation of dangerous drugs
under Arizona Revised Statutes (“A.R.S.”) section 13-3407(E). On the
remaining counts, the court sentenced Shoemaker as a category three
repetitive offender to concurrent mitigated terms, the longest being twelve
years. See A.R.S. § 13-703(C). The court ordered all counts be served
concurrent to each other and concurrent to the 2018 Maricopa conviction.
¶5 Shoemaker timely initiated post-conviction relief
proceedings. Appointed counsel found no viable claims for relief, and
Shoemaker then filed a pro se petition. Shoemaker raised claims of
ineffective assistance of counsel and illegal sentence, see Ariz. R. Crim. P.
Rule 33.1(a), (c), but failed to make an argument concerning ineffective
assistance of counsel. After the State responded, the superior court
summarily dismissed the petition. This petition for review followed.
¶6 On review, Shoemaker again challenges his sentence.
Because he committed multiple felonies on the same occasions, Shoemaker
states his 1994 California convictions count as his first felony and his 2000
California convictions as his second. Thus, Shoemaker argues he only has
one historical felony conviction—the 2004 Maricopa conviction—and
should be sentenced as a category two repetitive offender. See A.R.S. § 13-
703(B), (L); State v. Rasul, 216 Ariz. 491, 496, ¶ 22 (App. 2007). The State did
not respond to Shoemaker’s petition for review. However, in its response
at the trial level, the State argued that Shoemaker’s 2018 Maricopa
conviction is a historical conviction for enhancement purposes. See A.R.S.
§ 13-105(22)(a)(i). The superior court did not address the State’s argument
in its dismissal.
¶7 A conviction occurs when there is a determination of guilt by
verdict, finding, or the acceptance of a plea. State v. Thompson, 200 Ariz.
439, 441, ¶ 7 (2001). A historical prior felony conviction is “[a]ny felony
conviction that is a third or more prior felony conviction.” A.R.S. § 13-
105(22)(d). A superior court must count the prior felony convictions
forward, from oldest to newest, when determining the third prior felony
conviction. See State v. Decenzo, 199 Ariz. 355, 358, ¶ 9 (App. 2001). The
focus is on the conviction date, not the commission date, of the crime. See
State v. Thomas, 219 Ariz. 127, 130-31, ¶¶ 12, 17 (2008) (relying on the
defendant’s conviction dates of prior felonies in determining that the
defendant’s sentence was properly enhanced).
¶8 Convictions for two or more offenses committed on the same
occasion may be counted as only one conviction for the purpose of
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STATE v. SHOEMAKER
Decision of the Court
sentencing. A.R.S. § 13-703(L); Rasul, 216 Ariz. at 496, ¶ 22. To determine
if two or more offenses were committed on the same occasion, the court
must look at the specific facts of the case. State v. Kelly, 190 Ariz. 532, 534,
¶ 6 (1997) (a court must analyze “1) time, 2) place, 3) number of victims, 4)
whether the crimes were continuous and uninterrupted, and 5) whether
they were directed to the accomplishment of a single criminal objective.”).
¶9 A historical prior felony conviction is also a prior conviction
that “[m]andated a term of imprisonment except for a violation of chapter
34 . . . involving a drug below the threshold amount.” A.R.S. § 13-
105(22)(a)(i). Under this subsection, there is no timing requirement.
Thomas, 219 Ariz. at 129, ¶ 7. Thus, a crime committed after—but convicted
before—the offense-at-issue may be used as a historical prior felony
conviction to enhance a defendant’s sentence. Id. at 130, ¶ 9.
¶10 Shoemaker’s 1994 and 2000 California convictions are two
prior felony convictions. Thus, the 2004 Maricopa conviction is his first
historical prior felony conviction. See A.R.S. §§ 13-105(22)(d), -703(L). Even
if the superior court erred when it counted the two 2000 California
convictions as separate offenses, the 2018 Maricopa conviction was
Shoemaker’s second historical felony conviction. Although Shoemaker did
not separately admit to the 2018 conviction, he was sentenced to concurrent
sentences for the felonies committed in the instant case and the felony for
which he was convicted in the 2018 Maricopa case. Shoemaker cannot now
deny the 2018 conviction, especially given that he plead guilty here to
Counts 2-5 with two historical priors.1 Shoemaker’s sentence was not
illegal.
¶11 On review, Shoemaker also argues ineffective assistance of
trial counsel. However, because Shoemaker failed to argue this before the
superior court the claim is precluded. See Ariz. R. Crim. P. 33.16(c)(2)(B)
(petition for review must contain issues decided by superior court that
defendant is presenting for review); State v. Ramirez, 126 Ariz. 464, 468
(App. 1980) (court of appeals does not address issues raised for first time in
petition for review). Shoemaker has not sustained his burden of
establishing the superior court abused its discretion by denying relief on
the basis of this claim.
1 And in his October 2019 motion to modify sentencing, Shoemaker
acknowledged the 2018 conviction.
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STATE v. SHOEMAKER
Decision of the Court
¶12 For the reasons stated, we grant Shoemaker’s petition for
review and deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
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