Opinion
No. 1 CA-CR 14-0201
01-27-2015
STATE OF ARIZONA, Appellee, v. DOUGLAS EDWARD FUQUA, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Linley Wilson Counsel for Appellee White Law Offices, PLLC, Flagstaff By Wendy F. White Counsel for Appellant
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Coconino County
No. S0300CR201100315
The Honorable Dan R. Slayton, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Linley Wilson
Counsel for Appellee
White Law Offices, PLLC, Flagstaff
By Wendy F. White
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Samuel A. Thumma delivered the decision of the Court, in which Judge Patricia A. Orozco and Judge Michael J. Brown joined. THUMMA, Judge:
¶1 Douglas Edward Fuqua argues the Arizona Supreme Court's mandate remanding "for resentencing on each of the sentences ordered to be served day for day, or flat time" required a "full resentencing" and that the superior court erred when it "simply corrected that portion of the previous sentence found to be illegal" by imposing "85 percent time" sentences. Because the superior court properly followed the mandate, the sentences are affirmed.
FACTS AND PROCEDURAL HISTORY
¶2 In November 2011, a jury convicted Fuqua of four felonies: two counts of aggravated assault (Counts 2 and 5), kidnapping (Count 3) and criminal damage (Count 6). The jury found beyond a reasonable doubt that Counts 2, 3 and 5 were domestic violence offenses, and that Counts 2 and 5 were dangerous offenses because they involved the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument.
Fuqua also was convicted of two misdemeanors (Counts 1 and 4), which are not relevant here.
¶3 At a nearly two-hour sentencing, after considering aggravating and mitigating circumstances, the superior court sentenced Fuqua to consecutive prison terms of 11.25 years for Count 2; 15.75 years for Count 3; 7.5 years for Count 5 and 1 year for Count 6. The court ordered that the prison term for "Counts 2, 3, 5 and 6 is day for day flat time," adding that Fuqua "must serve 100% of the sentence imposed" for these counts. The court also awarded Fuqua 277 days of presentence incarceration credit.
¶4 On appeal, this court rejected Fuqua's argument that imposition of the "flat-time" sentences constituted fundamental error. See State v. Fuqua, No. 1 CA-CR 12-0088, 2013 WL 1174094, at *7 ¶¶ 33-35 (Ariz. App. Mar. 21, 2013). Fuqua filed a petition for review in the Arizona Supreme Court listing "Issue A" as: "Does A.R.S. § 41-1604.07 allow a trial judge to make any felony sentence a 'flat time' sentence?" Petition for Review at 2, State v. Fuqua, CR-13-0114-PR (Ariz. Apr. 3, 2013). The Arizona Supreme Court then issued an order stating:
IT IS ORDERED granting review as to Issue A in the Petition for Review.Arizona Supreme Court Order, State v. Fuqua, CR-13-0114-PR (Oct. 29, 2013).
IT IS FURTHER ORDERED reversing and vacating paragraphs 33-35 of the Memorandum Decision issued in this matter by the Arizona Court of Appeals, Division One, on March 21, 2013, which affirms the trial court's imposition of flat time sentences.
IT IS FURTHER ORDERED remanding the matter to the trial court for resentencing on each of the sentences ordered to be served day for day, or flat time.
¶5 After the mandate issued, the superior court resentenced Fuqua. At the resentencing, the court considered two questions: "1) What is meant by remand for re-sentencing and 2) whether or not the mandate of the Supreme Court was for the imposition of the 85% sentencing range . . . or whether the Supreme Court's position and Order directed this Court to conduct a full re-sentencing hearing, issue new aggravation and mitigation factors, and set a new sentence for each count." After oral argument, the court found "that it was directed to impose the 85% sentencing range, rather than conduct a full re-sentencing hearing." The court then affirmed the length of sentences previously imposed on Counts 2, 3, 5 and 6 but, instead of "flat sentences," ordered that "these are 85 percent and that [Fuqua] must serve each of those counts and thereafter community supervision equal to one day for every seven days of this sentence."
¶6 This court has jurisdiction over Fuqua's timely notice of appeal challenging the superior court's decision not to conduct a "full resentencing" under Arizona Constitution Article VI, Section 9, and Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1), 13-4031 and - 4033(A) (2015).
Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated.
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DISCUSSION
¶7 The superior court's jurisdiction on remand is limited by the terms of the appellate mandate, which must be "strictly followed." See Vargas v. Superior Court, 60 Ariz. 395, 397, 138 P.2d 287, 288 (1943). Here, the mandate specifically "revers[ed] and vacat[ed] paragraphs 33-35" of this court's memorandum decision that "affirm[ed] the trial court's imposition of flat time sentences" and remanded for "resentencing on each of the sentences ordered to be served day for day, or flat time." Arizona Supreme Court Order, Fuqua, CR-13-0114-PR. The vacated paragraphs do not address the actual length of Fuqua's sentence. See Fuqua, 2013 WL 1174094, at *7 ¶¶ 33-35. Instead, the paragraphs deal with the narrow issue of whether "the court's imposition of 'flat time' constitutes error." Id. at *7 ¶ 35. Had the Arizona Supreme Court wished to vacate the duration of the sentences (as opposed to whether they could properly be "flat time" sentences), it would have vacated other portions of this court's decision, including paragraph 41, which "affirm[s] Fuqua's convictions and sentences." Id. at *9 ¶ 41. Given that the length of time for the sentences imposed was not vacated, the superior court properly followed the mandate when it adjusted the sentences to impose 85 percent time.
¶8 The superior court, in determining the boundaries of its jurisdiction on remand, properly evaluated the mandate in the context of the arguments raised on appeal. See Vargas, 60 Ariz. at 397, 138 P.2d at 288 (appellate decision is binding on remand according to its "true intent and meaning."). Here, the superior court examined the petition for review and noted the scope of "Issue A" was limited to the judge's ability to impose a "flat time" (as opposed to an "85 percent time") sentence on any felony sentence pursuant to A.R.S. § 41-1604.07. See Petition for Review at 2, Fuqua, No. CR-13-0114-PR. As the superior court properly found, the arguments on appeal addressed "flat time sentence[s], not the actual years that were imposed."
¶9 In this appeal, Fuqua does not contest the number of years imposed or allege that the sentences are illegal. Instead, and notwithstanding the narrow scope of the mandate, Fuqua argues that the superior court "failed to follow the directive of the Supreme Court by limiting itself to a simple correction of the 'day for day' aspect of the original sentencing and refusing to hold a full re-sentencing hearing." The mandate, however, does not require such a hearing. Fuqua had an extensive sentencing hearing in 2012, which was guaranteed to him by statute. See A.R.S. § 13-701(D), (E). Moreover, Fuqua offers no new evidence or proof that would alter the analysis if "a full re-sentencing hearing" had been held on remand. The mandate was to correct the imposition of flat time sentences, which the superior court properly resolved on remand.
¶10 Fuqua also argues A.R.S. § 13-4037 mandates that the Supreme Court "shall correct the sentence" and thus no need exists to remand the matter for sentencing solely to correct an illegal sentence if such a correction could have been done in the order itself. Although it may be that the Arizona Supreme Court could have corrected the sentences without remand, it was not required to do so. See, e.g., State v. Anderson, 171 Ariz. 34, 35-36, 827 P.2d 1129, 1130-31 (1992) ("When the improperly imposed portion of the sentence was successfully challenged on defendant's appeal, the court... clearly had jurisdiction to remand to the trial court for a partial resentencing."). Thus, the fact of a remand is not dispositive of whether a full sentencing hearing was needed to comply with the mandate.
CONCLUSION
¶11 Because the superior court properly followed the mandate, Fuqua's sentences imposed on remand are affirmed.