State of Arizona v. Donald William Gulley , 242 Ariz. 149 ( 2017 )

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
STATE OF ARIZONA,
Appellee,
v.
DONALD WILLIAM GULLEY,
Appellant.
No. CR-16-0456-PR
Filed May 12, 2017
Appeal from the Superior Court in Yavapai County
The Honorable Tina R. Ainley, Judge
No. CR 201400855
VACATED IN PART AND REMANDED
Opinion of the Court of Appeals, Division One
240 Ariz. 580, 382 P.3d 795 (App. 2016)
VACATED IN PART
COUNSEL:
Sheila Sullivan Polk, Yavapai County Attorney, Dennis M. McGrane
(argued), Chief Deputy County Attorney, Prescott, Attorneys for State of
Arizona
Lourdes Todd, Yavapai County Public Defender, Grace M. Guisewite
(argued), Michelle L. DeWaelsche (argued), Deputy Public Defenders,
Prescott, Attorneys for Donald William Gulley
PER CURIAM:
¶1 We granted review in this case to consider whether A.R.S.
§ 13–707(B) requires a repeat class 1 misdemeanor conviction to be both
classified and sentenced as a class 6 felony. We have jurisdiction under
article 6, section 5(3) of the Arizona Constitution and A.R.S. § 12–120.24.
STATE V. GULLEY
Opinion of the Court
¶2 Here, Gulley pleaded guilty in 2012 to one count of disorderly
conduct in violation of A.R.S. § 13–2904(A), a class 1 misdemeanor. See
A.R.S. § 13–2904(B). Then, in 2013, a jury convicted Gulley of two counts of
disorderly conduct, also class 1 misdemeanors in violation of § 13–
2904(A)(1). At sentencing, the trial court classified each 2013 count as a
“class 6 felony” pursuant to § 13–707(B). Under § 13–707(B), a person “shall
be sentenced for the next higher class of offense than that for which the
person currently is convicted” if the person “stands convicted of any
misdemeanor” and “has been convicted of one or more of the same
misdemeanors . . . within two years next preceding the date of the present
offense[.]” Because Gulley was convicted of the same class 1 misdemeanor
in both 2012 and 2013, the trial court classified the 2013 convictions as class
6 felonies and imposed two concurrent and enhanced 3.75-year prison
terms.
¶3 On appeal, Gulley argues that the trial court committed
fundamental error when it designated his 2013 disorderly conduct
convictions as class 6 felonies and sentenced him as a category three
repetitive felony offender. According to Gulley, § 13–707(B) only pertains
to the sentence imposed because the phrase “stands convicted of [a]
misdemeanor” requires that the current conviction be classified as a
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STATE V. GULLEY
Opinion of the Court
misdemeanor in order for § 13–707(B) to apply. In response, the State
counters that if a felony sentence is imposed pursuant to § 13–707(B), then
a defendant’s current class 1 misdemeanor conviction must be (re)classified
as a felony conviction because an offense is classified under Arizona law
according to the type of sentence imposed.
¶4 After considering the briefs and oral arguments, the Court
vacates paragraphs 23–29 of the court of appeals’ opinion. See State v.
Gulley, 240 Ariz. 580, 586–87 ¶¶ 23–29, 382 P.3d 795, 801–02 (App. 2016).
Instead, we approve of the interpretation of § 13–707(B) as set forth in
paragraphs 4–10 of State v. Ceasar, 241 Ariz. 66, 383 P.3d 1140 (App. 2016).
As Ceasar explains, Section 13–707(B) only concerns the imposition of
sentencing enhancements for repeat misdemeanor convictions. The phrase
“stands convicted of any misdemeanor” dictates that the current conviction
must be classified as a class 1 misdemeanor in order for the trial court to
impose a class 6 felony sentence. Thus, the trial court committed
fundamental error when it (re)classified Gulley’s 2013 disorderly conduct
convictions as class 6 felonies and sentenced him as a category three
repetitive felony offender. See State v. Smith, 219 Ariz. 132, 136 ¶¶ 21–22,
194 P.3d 399, 403 (2008) (finding fundamental error when trial court
improperly used a conviction to enhance a prison sentence).
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STATE V. GULLEY
Opinion of the Court
¶5 Accordingly, as requested by the Attorney General and
Gulley before the court of appeals, we modify Gulley’s disorderly conduct
convictions and designate them as class 1 misdemeanors. We vacate
Gulley’s sentence and remand to the trial court for resentencing within the
range for first-time class 6 felonies.
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