State v. Davis ( 2019 )


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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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
    HENRY DAVIS, Appellant.
    No. 1 CA-CR 18-0653
    FILED 12-24-2019
    Appeal from the Superior Court in Maricopa County
    No. CR2017-115737-001
    The Honorable Erin Otis, Judge
    AFFIRMED AS MODIFIED
    COUNSEL
    Arizona Attorney General’s Office, Phoenix
    By Linley Wilson
    Counsel for Appellee
    Maricopa County Public Defender’s Office, Phoenix
    By Lawrence S. Matthew
    Counsel for Appellant
    STATE v. DAVIS
    Decision of the Court
    MEMORANDUM DECISION
    Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
    in which Judge Lawrence F. Winthrop and Judge Michael J. Brown joined.
    C A M P B E L L, Judge:
    ¶1            Henry Davis appeals his felony and misdemeanor sentences,
    which imposed concurrent terms in the Arizona Department of Corrections
    (“the DOC”) and the Maricopa County Jail. Because A.R.S. § 13-707
    prohibits misdemeanor sentences from being served in the state prison,
    Davis’s concurrent misdemeanor sentence constitutes fundamental error.
    We have the authority to correct sentencing errors without a remand,
    however, where the trial court’s intent is clearly expressed in the record. See
    A.R.S. § 13-4037(A); see State v. Gourdin, 
    156 Ariz. 337
    , 339–40 (1988).
    Because the trial court expressed its intent to terminally dispose of Davis’s
    misdemeanor conviction, we affirm his misdemeanor sentence as modified.
    We also affirm his conviction and felony sentence.
    BACKGROUND
    ¶2              Davis was convicted of Misconduct Involving Weapons
    (Count 1) and Possession or Use of Marijuana (Count 2) in two separate
    trials. At his first trial, a jury found him guilty of the weapons charge and
    found aggravating circumstances applied. Because it was designated a
    misdemeanor, the possession charge was prosecuted separately in a bench
    trial, where the trial court found Davis guilty.
    ¶3            A single sentencing hearing was conducted by the judge who
    presided over both trials. For Count 1, a class 4 felony, the court sentenced
    Davis as a category three repetitive offender to the presumptive term of ten
    years in the DOC. See A.R.S. § 13-703(J). Finding “terminal disposition . . .
    appropriate” for Count 2, a class 1 misdemeanor, the court then sentenced
    Davis on the possession charge to a concurrent term of six months to be
    served in the Maricopa County Jail. See A.R.S. § 13-707(A)(1). The court
    ordered both sentences to begin on September 5, 2018, and assigned Davis
    75 days of presentence incarceration credit for both counts. Davis’s counsel
    did not object to these sentences, and Davis timely appealed.
    2
    STATE v. DAVIS
    Decision of the Court
    DISCUSSION
    ¶4              Davis raises a single issue on appeal―a sentence in the
    Maricopa County Jail imposed concurrently with a sentence in the DOC
    constitutes an illegal sentence. See A.R.S. § 13-707(A) (“imprisonment for a
    misdemeanor shall be . . . served other than a place within custody of the
    state department of corrections”). Because Davis did not object at
    sentencing, our review is for fundamental error. See State v. Henderson, 
    210 Ariz. 561
    , 567, ¶ 19 (2005); see also State v. Vargas–Burgos, 
    162 Ariz. 325
    , 327
    (App. 1989) (legality of sentence may be properly appealed despite failure
    to object in trial court). Davis bears the burden of establishing that “(1) error
    exists, (2) the error is fundamental, and (3) the error caused him prejudice.”
    State v. Smith, 
    219 Ariz. 132
    , 136, ¶ 21 (2008); State v. Escalante, 
    245 Ariz. 135
    ,
    142, ¶ 21 (2018).
    ¶5            The imposition of an illegal sentence is fundamental error.
    State v. Pesqueira, 
    235 Ariz. 470
    , 478, ¶ 29 (App. 2014); State v. Thues, 
    203 Ariz. 339
    , 340, ¶ 4 (App. 2002). The court’s imposition of six months for the
    misdemeanor possession charge was illegal because, by requiring Davis to
    serve the six months of jail time concurrently with imprisonment in the
    DOC, the court imposed a sentence that is incompatible with the applicable
    sentencing statute, § 13-707(A).1 See State v. Gonzales, 
    141 Ariz. 512
    , 513
    (1984) (sentence inconsistent with sentencing statute is illegal). The State
    concedes the sentence is “technically” illegal but argues it is illegally
    lenient. Based on this assertion, the State claims we lack jurisdiction to
    disturb the sentence under State v. Dawson, 
    164 Ariz. 278
    (1990).
    Alternatively, the State argues that an illegally lenient sentence is not
    fundamental error.
    ¶6              The imposition of an illegally lenient sentence may be
    harmless error. See State v. Kinslow, 
    165 Ariz. 503
    , 507 (1990) (imposition of
    sentence with parole eligibility under statutory minimum was harmless
    error); but see State v. Ortiz, 
    104 Ariz. 493
    , 495 (1969) (“An illegal sentence is
    no sentence at all.”). A sentence is illegally lenient when correcting the error
    “inures to the detriment of a criminal defendant.” 
    Dawson, 164 Ariz. at 286
    .
    Davis’s misdemeanor sentence is not illegally lenient because the effect of
    the sentencing error is uncertain. The State argues correcting the sentencing
    error would only harm Davis because “he will never have to serve the
    1     Other than challenging the imposition of illegally concurrent
    sentences, Davis does not directly challenge his felony sentence.
    3
    STATE v. DAVIS
    Decision of the Court
    6-month jail sentence,” which “will have expired” prior to his release from
    the DOC.
    ¶7             We are not convinced that this outcome is dictated by the very
    terms of Davis’s sentences. The State offers no supporting reasons or legal
    authority to buttress its claim that Davis’s jail sentence will expire during
    his prison term. In fact, after Davis completes his ten-year sentence at the
    DOC, his jail sentence will remain, at least technically, unserved. Davis is
    concerned that, at the end of his prison sentence, he will be transferred to
    the county jail to serve the remainder of his misdemeanor sentence. The
    State argues his concern is “unfounded,” citing a Maricopa County Sheriff’s
    Office (“MCSO”) policy which states that “[a] concurrent sentence shall be
    served at the same time as any other sentence that the inmate serves.” See
    MCSO, Policy No. DM-2, Computation of Projected Release Dates 1 (Mar.
    13, 2018), https://www.mcso.org/documents/Policy/Detention/DM-
    2.pdf (effective date Dec. 4, 2015).
    ¶8            Even were we to take judicial notice of this policy, the MCSO
    cannot correct an illegally imposed sentence―that power rests squarely
    with the judicial branch of government.2 State v. Prentiss, 
    163 Ariz. 81
    , 85
    (1989) (noting judiciary’s sole and unrestricted power to “decid[e] what a
    sentence should be” within statutory sentencing limits). Further, the
    uncertainty surrounding Davis’s illegal concurrent sentencing raises due
    process concerns. The illegality of his sentence is not lenient—it is
    inherently prejudicial.3
    ¶9            The sentencing error here was fundamental and prejudicial.
    Davis’s misdemeanor sentence must therefore be modified. Although
    remand may be appropriate for the imposition of unlawful concurrent
    prison and jail sentences, see, e.g., State v. Harris, 
    134 Ariz. 287
    , 287 n.1, 289
    (App. 1982), we have independent authority to correct sentencing errors if
    the trial court’s intent is clearly expressed in the record. See A.R.S.
    § 13-4037(A); see 
    Gourdin, 156 Ariz. at 339
    –40 (reducing length of sentence
    to fulfill State and Defendant’s expectations for plea bargain where
    negotiated presentence incarceration credit was illegal). Sentence
    modification only requires a remand if it would affect a substantial right of
    2       See In re Sabino R., 
    198 Ariz. 424
    , 425, ¶ 4 (App. 2000) (Arizona Rule
    of Evidence 201 allows appeals court to take notice of anything of which
    trial court could have taken notice).
    3       Because we do not find Davis’s sentence to be illegally lenient, we
    need not further address the State’s arguments based on that premise.
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    STATE v. DAVIS
    Decision of the Court
    the defendant or if it involves sentencing discretion. State v. Davis, 
    105 Ariz. 498
    , 502 (1970) (“modification of a judgment which affects the substantial
    rights of a defendant requires his presence”); State v. Pena, 
    209 Ariz. 503
    ,
    509, ¶ 23 (App. 2005) (“The exercise of sentencing discretion is the trial
    judge’s, not ours.”).
    ¶10           Because these concerns are not implicated here and because
    the trial court’s intent is clear from the record, modification of Davis’s
    sentence does not require remand. At the sentencing hearing, the trial court
    expressly stated that terminal disposition of the misdemeanor conviction
    “[wa]s appropriate.” The State and Davis both advocated in support of this
    terminal disposition. We conclude the trial court’s intention was to impose
    a ten-year sentence for the felony conviction and to terminally dispose of
    the misdemeanor charge. The fact that Davis lacked sufficient presentence
    incarceration credit to effect this terminal disposition does not disturb this
    conclusion, when considered in a comprehensive review of the sentencing
    hearing.
    ¶11           In light of this clearly expressed intent, modification of
    Davis’s sentence for the misdemeanor (Count 2) is appropriate. Thus, we
    modify his sentence for the misdemeanor from six months in jail to 75 days
    in the county jail with credit for the 75 days he served prior to sentencing.
    This modification will effectuate the terminal disposition intended by the
    trial court within the bounds of the applicable sentencing provisions. See
    A.R.S. § 13-703(J) (presumptive term of ten years for class 4 felony and
    category three repetitive offender); see § 13-707(A)(1) (maximum term of six
    months for class 1 misdemeanor).
    CONCLUSION
    ¶12          Because the imposition of an illegal sentence for the
    misdemeanor possession charge (Count 2) was fundamental error, we
    modify that sentence from a concurrent term of six months to a concurrent
    term of 75 days with credit for time served. Because Davis challenges
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    STATE v. DAVIS
    Decision of the Court
    neither his convictions nor the sentence imposed for the felony weapons
    charge (Count 1), we affirm his convictions on both counts, and we affirm
    his sentence for the felony.
    AMY M. WOOD • Clerk of the Court
    FILED: AA
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