Opinion
No. 2 CA-CR 2014-0192
03-10-2015
THE STATE OF ARIZONA, Appellee, v. JESSICA OPAL ACOSTA, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General By Joseph T. Maziarz, Assistant Attorney General, Phoenix Counsel for Appellee Joel A. Larson, Cochise County Legal Defender, Bisbee Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Cochise County
No. CR201200420
The Honorable John F. Kelliher Jr., Judge
AFFIRMED AS MODIFIED
COUNSEL Mark Brnovich, Arizona Attorney General
By Joseph T. Maziarz, Assistant Attorney General, Phoenix
Counsel for Appellee
Joel A. Larson, Cochise County Legal Defender, Bisbee
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Kelly authored the decision of the Court, in which Judge Howard and Judge Vásquez concurred. KELLY, Presiding Judge:
¶1 After a jury trial, appellant Jessica Acosta was convicted of multiple offenses related to her sale of methamphetamine and a prescription-only drug in two separate transactions. The trial court sentenced her to concurrent prison terms for the methamphetamine offenses, the longest of which is five years, to be followed by concurrent probation terms of three years for the sale of a prescription-only drug and four years for using a cellular telephone to facilitate that transaction. As the sole issue on appeal, Acosta argues the court committed fundamental error in designating her use of a cellular telephone to facilitate a drug transaction, a violation of A.R.S. § 13-3417, as a class four felony and in imposing a four-year term of probation for that offense. She asks that we vacate the probation term imposed for this offense, count seven of the indictment, and remand the case for re-designation of her conviction and resentencing.
¶2 The state agrees the trial court erred in designating the offense as a class four felony and in imposing a four-year term of probation. It maintains, however, that a remand is not required, because this court may, pursuant to A.R.S. § 13-4037(A), re-designate Acosta's conviction for count seven as a class six felony and reduce the probation term imposed to three years. We agree with the state.
¶3 Section 13-4037(A) provides an appellate court "shall correct" "an illegal sentence . . . imposed upon a lawful verdict," so that the sentence "correspond[s] to the verdict" rendered. See also Ariz. R. Crim. P. 31.17(b) and cmt.; State v. Gourdin, 156 Ariz. 337, 339, 751 P.2d 997, 999 (App. 1988) (recognizing statutory authority of appellate court to correct illegal sentence). In this case, count seven of the indictment against Acosta erroneously identified her violation of § 13-3417 as a class four felony. Section 13-3417(C) provides, "A person who violates this section is guilty of a class 4 felony except if the felony facilitated carries a class 5 or 6 designation in which case a violation of this section shall carry the same classification as the felony facilitated." The "felony facilitated" under count seven of Acosta's indictment was the sale of prescription-only drugs, a class six felony. See A.R.S. § 13-3406(A)(7), (B)(2). Accordingly, pursuant to § 13-3417(C), her conviction for count seven is properly designated as a class six felony. We conclude her ensuing placement on a four-year term of probation is an "illegal sentence" under § 13-4037(A). See A.R.S. §§ 13-902(A)(4) (setting three-year maximum period of probation for class six felony); see also § 13-902(A)(3); State v. Falco, 162 Ariz. 319, 321, 783 P.2d 258, 260 (App. 1989) (recognizing unauthorized term of probation as "unlawful sentence").
¶4 Moreover, we conclude the unauthorized probation term was "imposed upon a lawful verdict" under § 13-4037(A). According to its verdict form, the jury found Acosta "guilty of Use of Wire or Electronic Communication to Facilitate the Sale of a Prescription-Only Drug," without reference to the indictment or a felony classification for the offense. It was only at sentencing that the trial court, apparently in reliance on the indictment or presentence report, mistakenly designated the offense a class four felony and imposed the maximum, four-year term of probation authorized for a class four felony under § 13-902(A)(3).
¶5 We therefore conclude we are authorized, under these circumstances, to correct "an illegal sentence . . . imposed upon a lawful verdict." § 13-4037(A); see also State v. Bouchier, 159 Ariz. 346, 347, 767 P.2d 233, 234 (App. 1989) (recognizing illegal term of probation as fundamental error). As our supreme court has explained, § 13-4037(A) is "intended to allow an appellate court to reduce an illegally severe sentence—that is, one beyond the maximum allowed by statute." State v. Dawson, 164 Ariz. 278, 283-84, 792 P.2d 741, 746-47 (1990).
¶6 Our decision to correct the judgment and sentence pursuant to § 13-4037(A), rather than remand the case for further proceedings, is influenced by Acosta's lack of objection to our doing so and by the trial court's clearly stated intent to impose the "maximum term of probation" for count seven, "to run consecutively" to her prison sentences. See State v. Kerr, 142 Ariz. 426, 435, 690 P.2d 145, 154 (App. 1984) (sentence modified, pursuant to § 13-4037, to reflect clear intent of trial court); cf. State v. Dowthard, 92 Ariz. 44, 49, 373 P.2d 357, 360 (1962) (modifying written judgment to correct designation of offense of conviction).
After the state filed its answering brief, Acosta notified this court that she did not intend to file a reply brief.
¶7 Accordingly, we correct and modify the judgment to reflect Acosta's conviction, on count seven of the indictment, for the class six felony of using a wire or electronic communication to facilitate the sale of a prescription-only drug. We further correct and modify the judgment to reflect Acosta's placement on a three-year term of probation for count seven, concurrent with the three-year term of probation imposed for count eight of the indictment, but consecutive to the concurrent prison sentences imposed for counts two, three, and five. As modified by this decision, to reflect the correct felony classification and probation term for count seven, Acosta's convictions and sentences are affirmed.