State v. Agyepong ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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,
v.
WILLIAM K. AGYEPONG, Appellant.
No. 1 CA-CR 20-0039
FILED 3-4-2021
Appeal from the Superior Court in Maricopa County
No. CR2018-141758-001
The Honorable Julie A. LaFave, Commissioner
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joshua C. Smith
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Robert W. Doyle
Counsel for Appellant
STATE v. AGYEPONG
Decision of the Court
MEMORANDUM DECISION
Judge Cynthia J. Bailey delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Lawrence F. Winthrop joined.
B A I L E Y, Judge:
¶1 William K. Agyepong appeals his sentences for two counts of
trafficking stolen property, arguing he was improperly sentenced under
A.R.S. § 13-703(A) concerning repetitive offenders. For the following
reasons, we affirm.
FACTS 1 AND PROCEDURAL HISTORY
¶2 In 2014, K.H. 2 hired Agyepong as a caregiver for her husband,
J.H. After J.H. died later that year, Agyepong continued to work for K.H.
until July 2017. In 2015, after returning from a trip to Michigan, K.H.
discovered three jewelry pieces—a watch, wedding ring, and a yellow
diamond ring—missing from her dresser drawer. She reported the missing
pieces to her insurance company but did not file a police report at that time.
In March 2016, Agyepong sold K.H.’s rings to a diamond buyer in
Scottsdale, and then, the following month, he sold her watch to the same
jewelry dealer and deposited the proceeds of both sales into his bank
account. Agyepong was arrested after K.H. reported the theft to police in
2018.
¶3 The State charged Agyepong with one count of theft, a Class
2 felony, and two counts of trafficking in stolen property, Class 3 felonies.
The State did not cite A.R.S. § 13-703(A) in the complaint or the information
filed the morning of trial.
¶4 At an initial pretrial conference, the State gave Agyepong a
Donald advisement. See State v. Donald, 198 Ariz. 406, 413, ¶ 14 (App. 2000)
1 We view the evidence in the light most favorable to sustaining the
convictions and resolve all reasonable inferences against Agyepong. State
v. Karr, 221 Ariz. 319, 320, ¶ 2 (App. 2008).
2Initials are used to protect the victims’ privacy. State v. Maldonado, 206
Ariz. 339, 341, ¶ 2 n.1 (App. 2003).
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STATE v. AGYEPONG
Decision of the Court
(“[O]nce the State engages in plea bargaining, the defendant has a Sixth
Amendment right to be adequately informed of the consequences before
deciding whether to accept or reject the offer.”). He was advised that if he
were found guilty at trial on all counts, he would be sentenced as a
category-one repetitive offender to between two and 8.75 years on count 2,
and as a category-two repetitive offender to between 3.25 and 16.25 years
on count 3. See A.R.S. § 13-703(A). The State’s premise for the enhanced
sentences was that a conviction on count 1 would serve as the prior
conviction for the sentence imposed on count 2, and the convictions on
counts 1 and 2 would serve as the prior convictions for the sentence
imposed on count 3. Agyepong’s counsel did not object to or correct the
sentencing ranges in the advisement, and Agyepong affirmed he
understood the range of penalties.
¶5 The parties filed a joint pretrial statement that contained the
same sentencing ranges discussed at the Donald advisement, including the
sentencing enhancements for counts 2 and 3 under § 13-703(A). At a Donald
advisement given on the day of trial, Agyepong was again informed about
the mandatory sentencing enhancements for counts 2 and 3 under § 13-
703(A). Agyepong’s counsel did not dispute the sentencing range or object
to the sentencing enhancements contemplated during the advisement, and
Agyepong avowed he understood the range of penalties and the plea offer.
¶6 The jury found Agyepong guilty on all three counts. At
sentencing, he argued that because the State had not properly noticed the
sentencing enhancement under § 13-703(A), it was inapplicable. The trial
court sentenced Agyepong as a non-dangerous, non-repetitive offender on
count 1; as a non-dangerous, category-one repetitive offender on count 2;
and as a non-dangerous, category-two repetitive offender on count 3. See
A.R.S. § 13-703(A).
¶7 We have jurisdiction over Agyepong’s timely appeal
pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S.
§§ 12-120.21(A)(1), 13-4031, and -4033(A).
DISCUSSION
¶8 On appeal, Agyepong does not dispute his convictions but
argues (1) the State did not properly notice its intent to sentence him on
counts 2 and 3 as a repetitive offender under § 13-703(A), and (2) the court
erred in sentencing him under § 13-703(A). We address each argument in
turn. “Sentencing determinations are reviewed for abuse of discretion, but
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STATE v. AGYEPONG
Decision of the Court
we review questions of statutory interpretation de novo.” State v. Francis,
224 Ariz. 369, 371, ¶ 9 (App. 2010) (internal quotes and citations omitted).
I. Whether notice was adequate.
¶9 Agyepong contends he did not receive notice that the State
would ask the court to sentence him as a repetitive offender under § 13-
703(A). He further argues that such notice must be given in an information
or indictment or an amended charging document. Not so.
¶10 “Notice . . . must be such that the defendant is not ‘misled,
surprised or deceived in any way by the allegations’ . . . .” State v. Benak,
199 Ariz. 333, 337, ¶ 16 (App. 2001) (quoting State v. Bayliss, 146 Ariz. 218,
219 (App. 1985)) (addressing whether a defendant had sufficient notice of
State’s intent to designate prior felony convictions as dangerous under
A.R.S. § 13-604.04). To determine whether notice was adequate, “courts
look beyond the indictment to determine whether defendants received
actual notice of charges, and the notice requirement can be satisfied even
when a charge was not included in the indictment.” State v. Freeney, 223
Ariz. 110, 114, ¶ 24 (2009) (considering whether Sixth Amendment notice
requirement was satisfied by actual notice).
¶11 Although neither the complaint nor the information referred
to § 13-703(A), the record demonstrates Agyepong had sufficient notice he
could be sentenced as a repetitive offender. Here, counts 1, 2, and 3 alleged
offenses committed on three different dates. Thus, the information alleged
all the facts necessary for the court to sentence him under § 13-703(A). See
Francis, 224 Ariz. at 372, ¶ 13 (concluding defendant had notice A.R.S. § 13-
3419 applied to sentencing when indictment charged drug offenses
occurring on different dates).
¶12 Also, the trial court twice advised Agyepong during the
Donald advisements that he could be sentenced pursuant to § 13-703(A).
After both advisements, Agyepong affirmed he understood the sentencing
ranges he faced if he was found guilty. Moreover, the parties’ joint pretrial
statement listed § 13-703(A) as a mandatory sentencing enhancement.
Thus, Agyepong had sufficient notice that he could be sentenced as a repeat
offender under § 13-703(A). See Freeney, 223 Ariz. at 114, ¶ 27 (finding
defendant received sufficient notice from State’s pretrial disclosures,
including a joint pretrial statement); State v. Williams, 144 Ariz. 433, 442
(1985) (finding no prejudice by statutory non-compliance when the
defendant had actual notice of the State’s intent to use prior convictions to
seek an enhanced sentence).
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STATE v. AGYEPONG
Decision of the Court
II. Whether the offenses were committed on three different occasions
pursuant to § 13-703(A).
¶13 Under § 13-703(A), a person convicted of multiple felony
offenses that were not committed on the same occasion but were
consolidated for trial “shall be sentenced as a first time felony offender
pursuant to § 13-702 for the first offense, as a category one repetitive
offender for the second offense, and as a category two repetitive offender
for the third and subsequent offenses.” To determine whether offenses
have been committed on the same occasion, courts consider five factors: (1)
time, (2) place, (3) the 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. State v. Kelly, 190 Ariz. 532,
534, ¶ 6 (1997).
¶14 Agyepong contends he was improperly sentenced under § 13-
703(A) because his three offenses were committed on the same occasion.
He argues that under the Kelly factors, the offenses charged in counts 2 and
3 were committed on the same occasion because there was only one victim,
K.H., the jewelry was resold to the same dealer, and all the offenses
furthered a single criminal objective, i.e., to resell stolen jewelry for cash.
¶15 The Kelly factors do not support Agyepong’s argument.
Although two of the factors, place and number of victims, arguably weigh
in favor of a finding that Agyepong committed the offenses on the same
occasion, he was convicted on counts 2 and 3 for selling the stolen jewelry,
and it was undisputed that he made those sales on two different dates.
¶16 Next, Agyepong argues the two offenses were continuous
and uninterrupted. But he sold the rings to a secondhand dealer, deposited
the check, then waited three weeks before returning to sell the watch, and
then deposited the second check. Given the length of time between the two
sales, the two crimes were separate events. See id.
¶17 Finally, we consider whether the offenses were directed to
the accomplishment of a single criminal objective. See id. Agyepong
maintains his sole criminal objective was to sell the stolen jewelry for cash,
and each offense furthered that objective. However, both the Arizona
Supreme Court and this court have “rejected the notion that a scheme to
commit multiple crimes in order to make money is a single criminal
objective, even when some Kelly factors are present.” State v. Flores, 236
Ariz. 33, 37, ¶ 11 (App. 2014); see also State v. Perkins, 144 Ariz. 591, 595–97
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STATE v. AGYEPONG
Decision of the Court
(1985), overruled on other grounds by State v. Noble, 152 Ariz. 284, 287–88
(1987).
¶18 Because Agyepong’s offenses were not committed on the
same occasion, the court did not err in enhancing his sentence under § 13-
703(A).
CONCLUSION
¶19 Because Agyepong was sentenced correctly under § 13-
703(A), we affirm his sentences.
AMY M. WOOD • Clerk of the Court
FILED: AA
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