State v. Smith ( 2018 )


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  •                      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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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,
    v.
    JAWON O. SMITH, Appellant.
    No. 1 CA-CR 17-0090
    1 CA-CR 17-0091
    (Consolidated)
    FILED 4-19-2018
    Appeal from the Superior Court in Maricopa County
    No. CR2013-455082-001
    CR2015-106122-001
    The Honorable Michael D. Gordon, Judge
    AFFIRMED IN PART; VACATED AND REMANDED IN PART
    COUNSEL
    Arizona Attorney General's Office, Phoenix
    By Terry M. Crist
    Counsel for Appellee
    Maricopa County Public Defender's Office, Phoenix
    By Edward F. McGee
    Counsel for Appellant
    STATE v. SMITH
    Decision of the Court
    MEMORANDUM DECISION
    Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
    which Judge Kent E. Cattani and Judge Jennifer M. Perkins joined.
    J O H N S E N, Judge:
    ¶1           Jawon O. Smith appeals the sentences imposed after he was
    convicted of several felonies. For the following reasons, we affirm the
    convictions and resulting sentences except that we vacate and remand the
    sentences imposed on the child-prostitution convictions.
    FACTS AND PROCEDURAL BACKGROUND
    ¶2            Smith was indicted on 13 charges: Sex trafficking of a minor,
    a Class 2 felony; aggravated assault, a Class 3 dangerous felony; and 11
    counts of child prostitution, each a Class 2 felony. The indictment listed the
    date of each of the alleged acts of child prostitution as on or between
    September 1, 2013 and December 18, 2014. After a six-day trial, a jury
    convicted Smith of sex trafficking of a minor, disorderly conduct as a lesser-
    included offense of aggravated assault, and four counts of child
    prostitution.
    ¶3            At sentencing, the court found that Smith had two historical
    prior felony convictions – misconduct involving weapons, a Class 4 felony
    committed on November 15, 2013, and possession of marijuana, a Class 6
    felony committed on April 6, 2009. The court classified all six of the current
    convictions as non-dangerous repetitive felonies and sentenced Smith to
    what the court stated were the statutory minimum terms of incarceration of
    14 years on the sex trafficking conviction, four years for disorderly conduct,
    and 21 years for each of the four counts of child prostitution. The court
    ordered all the sentences to be served consecutively to each other and
    concurrent with the remainder of Smith's sentence on the weapons offense,
    for which the court revoked probation and imposed a 1.5-year sentence.
    ¶4            Smith timely appealed. We have jurisdiction pursuant to
    Article 6, Section 9, of the Arizona Constitution, and Arizona Revised
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    STATE v. SMITH
    Decision of the Court
    Statutes ("A.R.S.") sections 12-120.21(A)(1) (2018), 13-4031 (2018) and
    -4033(A)(1) (2018).1
    DISCUSSION
    A.     Smith's Sentences as a Category-Three Repetitive Offender.
    ¶5            The State's original indictment, filed February 13, 2015, did
    not allege any prior convictions. In March 2015, the State amended the
    indictment to allege that Smith's marijuana conviction was a "multiple
    offense not committed on the same occasion" but "not a historical prior
    felony." The same day, the State also amended the indictment to allege that
    Smith's weapons conviction was an "historical non dangerous felony
    conviction[]." At Smith's sentencing, the court found that both prior
    convictions were historical prior felony convictions as defined by A.R.S. §
    13-105(22) (2018) and sentenced Smith as a category-three offender to 14
    years' incarceration on the sex trafficking offense and 21 years for each
    count of child prostitution, the minimum sentences for a category-three
    offender; and four years on the disorderly conduct offense, one year more
    than the minimum for a category-three offender. See A.R.S. § 13-703(J)
    (2018) (sentences for "category three repetitive offender").
    ¶6             Under § 13-703(C), "a person shall be sentenced as a category
    three repetitive offender if the person is at least eighteen years of age or has
    been tried as an adult and stands convicted of a felony and has two or more
    historical prior felony convictions." The court may impose enhanced
    sentences under § 13-703, however, only "if an allegation of prior conviction
    is charged in the indictment or information and admitted or found by the
    court." A.R.S. § 13-703(N). Smith contends the superior court erred by
    sentencing him as a category-three offender under § 13-703(C) because the
    indictment alleged just one historical prior felony conviction (the weapons
    conviction), not two. We review this issue for fundamental error because
    Smith did not object at sentencing. See State v. Henderson, 
    210 Ariz. 561
    , 567,
    ¶ 19 (2005); State v. Curry, 
    187 Ariz. 623
    , 632 (App. 1996) (fundamental error
    review when defendant failed to challenge aggravating factor at
    sentencing).
    ¶7            The State does not dispute that the superior court erred by
    sentencing Smith as a category-three offender when the indictment alleged
    just one historical prior felony conviction. It argues, however, that Smith
    1      Absent material revision of a statute or rule after the date of an
    alleged offense, we cite the current version.
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    STATE v. SMITH
    Decision of the Court
    cannot prove he was prejudiced by the error because he had notice that the
    State would seek to use the marijuana conviction to enhance sentences
    imposed for his current convictions. See 
    Henderson, 210 Ariz. at 567
    , ¶ 20
    ("To prevail under [the fundamental error] standard of review, a defendant
    must establish both that fundamental error exists and that the error in his
    case caused him prejudice.").
    ¶8             Smith argues that under § 13-703(N), "a defendant must be
    informed prior to trial that enhancement of his sentence is possible." To be
    sure, "[a]s a policy matter the defendant should know the full extent of the
    potential punishment that he faces before trial." State v. Rodgers, 
    134 Ariz. 296
    , 306 (App. 1982). A defendant must be fairly forewarned of the State's
    intended use of prior convictions "such that the defendant is not 'misled,
    surprised or deceived in any way by the allegations' of prior convictions."
    State v. Benak, 
    199 Ariz. 333
    , 337-38, ¶¶ 15-18 (App. 2001) (quoting State v.
    Bayliss, 
    146 Ariz. 218
    , 219 (App. 1985)).
    ¶9             In support of its contention that Smith is not entitled to have
    his sentences vacated because of the error, the State cites State v. Williams,
    
    144 Ariz. 433
    , 442 (1985), in which the superior court erroneously allowed
    the State to amend the indictment's allegations of prior convictions after the
    verdict but before sentencing. See A.R.S. § 13-703(N) (allowing a prior
    conviction to be alleged "at any time before the date the case is actually
    tried" and giving the court discretion to reject amendment only if the
    allegation is within 20 days of trial and the court finds prejudice to the
    defendant). The indictment in Williams had alleged two prior convictions
    for purposes of sentencing enhancement; the tardy amendment substituted
    a third prior conviction for one of the two originally alleged. The supreme
    court did not reverse the sentencing because it concluded the defendant
    "had timely notice of the prosecutor's intent to use prior convictions to seek
    enhanced 
    punishment." 144 Ariz. at 442
    .
    ¶10           Here, the State alleged almost 20 months before trial that it
    intended to use Smith's prior marijuana conviction for enhancement
    purposes under § 13-703. Although that amendment characterized the
    conviction as not an historical prior felony, it was treated throughout
    Smith's case as if it was. At Smith's settlement conference – more than 15
    months before his trial – the court informed Smith that the marijuana felony
    "count[ed]" for sentencing purposes and he therefore had "two prior
    felonies." The settlement judge told Smith that his two prior felonies
    subjected him to a presumptive sentence of 15.75 years on the sex trafficking
    charge and 11.25 years for the aggravated assault charge – the presumptive
    terms for these offenses for category-three offenders with two prior
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    STATE v. SMITH
    Decision of the Court
    historical felonies. See A.R.S. § 13-703(J). Moreover, the parties' joint
    pretrial statement stated that Smith had "two historical prior felony
    convictions" and that as a result, he faced a sentencing range for sex
    trafficking and aggravated assault for a person with two historical prior
    felony convictions.
    ¶11           The State argues that, like the defendant in Williams, Smith
    was on notice that the State would ask the court to sentence him pursuant
    to § 13-703(C). The statute allows a defendant to be sentenced as a repetitive
    offender "if an allegation of [a] prior conviction is charged in the
    indictment." A.R.S. § 13-703(N). We agree that Williams applies here. Both
    the prior convictions on which the court relied in sentencing Smith were
    charged in amendments to the indictment, and, as set out above, Smith
    understood that they could render him subject to sentencing as a category-
    three offender.
    B.     Application of Statutory            Amendment     to   Smith's    Child-
    Prostitution Sentences.
    ¶12           At trial, the victim of the prostitution offenses testified but did
    not identify the specific dates of the offenses. Smith asserts that, as a result,
    there was no evidence showing whether the child prostitution offenses of
    which he was convicted occurred before or after an amendment to the
    sentencing statute took effect on July 24, 2014. He argues the court erred by
    classifying him as a repetitive offender under the amended version of
    A.R.S. § 13-3212 because the pre-amendment version of the statute allowed
    an enhanced sentence for repetitive offenders only upon proof of a prior
    offense for child prostitution. See A.R.S. § 13-3212(G)(2), (3) (2013)
    (allowing sentencing enhancement as a repetitive offender with one or
    more historical prior felony convictions "for a violation of this section").
    ¶13           It is undisputed that when he was sentenced, Smith had no
    prior convictions for child prostitution. Accordingly, the State confesses
    error, agreeing that because the dates of his child-prostitution offenses are
    unclear from the record, the court erred by applying the version of § 13-
    3212 that took effect on July 24, 2014. The State concedes that Smith must
    be resentenced according to the prior version of that statute. See State v.
    Martinez, 
    226 Ariz. 221
    , 224, ¶ 17 (App. 2011) (imposition of an illegal
    sentence is fundamental error).
    ¶14          Smith argues that because the court imposed minimum
    enhanced sentences for his child-prostitution offenses, the court must
    resentence him to seven years on each child-prostitution offense – the
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    STATE v. SMITH
    Decision of the Court
    minimum term of incarceration for a first-time child-prostitution offender
    under the older version of the statute. See A.R.S. § 13-3212(G)(1) (2013). But
    on remand, the superior court need not choose to impose the minimum
    sentence under the correct sentencing regime. See State v. Osborn, 
    220 Ariz. 174
    , 179, ¶ 14 (App. 2009) ("[T]he guarantee against double jeopardy [does
    not] restrict[] the length of a sentence imposed upon retrial after a
    defendant's successful appeal.") (quoting Monge v. California, 
    524 U.S. 721
    ,
    730 (1998)).
    ¶15           Smith also contends that in resentencing him on the child-
    prostitution convictions, the court may not impose an enhanced sentence
    under A.R.S. § 13-703. He contends that "A.R.S. § 13-3212(G) is a special
    sentencing statute that takes precedence over the general sentencing
    statutes treating [] repetitive offenders addressed by the various
    subsections of A.R.S. § 13-703." Our supreme court has held, however, that
    a defendant may be sentenced under the general repetitive offender
    enhancement provisions in § 13-703 even if a more specific repetitive
    offender enhancement such as § 13-3212(G) applies. See State v. Diaz, 
    224 Ariz. 322
    , 324-25, ¶ 16 (2010) ("[A]bsent an express exclusion in a separate
    provision of our statutory sentencing scheme, the State may pursue
    enhanced penalties against a repetitive offender under A.R.S. § 13-703.").
    ¶16             Smith further argues that, on remand, the court may not
    sentence him as a category-three offender on the child-prostitution charges
    because his prior marijuana conviction had become "stale" as to those
    offenses and therefore did not qualify as an historical prior conviction
    under § 13-703(C). The State concedes that the marijuana conviction does
    not qualify as an historical prior conviction for purposes of sentencing
    Smith for the prostitution offenses because the prostitution offenses may
    have occurred more than five years after the marijuana offense. See A.R.S.
    § 13-105(22)(c) (2018) (defining "[h]istorical prior felony conviction" as, inter
    alia, "[a]ny class 4, 5 or 6 felony . . . that was committed within the five years
    immediately preceding the date of the present offense").
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    STATE v. SMITH
    Decision of the Court
    CONCLUSION
    ¶17           For the foregoing reasons, we affirm Smith's convictions and
    the resulting sentences, with the exception of the sentences imposed on the
    four child-prostitution convictions. We vacate those sentences and remand
    for resentencing consistent with this decision.
    AMY M. WOOD • Clerk of the Court
    FILED: AA
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