Opinion
No. 2 CA-CR 2018-0028-PR
06-27-2018
THE STATE OF ARIZONA, Respondent, v. ZACHARY J. LESCARBEAU, Petitioner.
COUNSEL Dean Brault, Pima County Legal Defender By Alex Heveri, Assistant Legal Defender, Tucson Counsel for Petitioner
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NOT FOR PUBLICATION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. 31.19(e). Petition for Review from the Superior Court in Pima County
No. CR20164444001
The Honorable Renee T. Bennett, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Dean Brault, Pima County Legal Defender
By Alex Heveri, Assistant Legal Defender, Tucson
Counsel for Petitioner
MEMORANDUM DECISION
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Chief Judge Eckerstrom concurred. BREARCLIFFE, Judge:
¶1 Zachary Lescarbeau seeks review of the trial court's ruling denying his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Lescarbeau has not shown such abuse here.
¶2 In CR20162211, Lescarbeau pleaded guilty to five counts of facilitation to commit trafficking in stolen property, each a class six undesignated felony. The trial court accepted his guilty plea and set sentencing to be held in about sixty days. Before he was sentenced, Lescarbeau pawned a firearm and was subsequently charged in this cause number, CR20164444, with possessing a deadly weapon after having been convicted of a felony. Lescarbeau pleaded guilty to that charge. The court suspended the imposition of sentence and placed Lescarbeau on a three-year term of probation.
¶3 Lescarbeau sought post-conviction relief, asserting "there never were facts to support his conviction" and citing Rule 32.1(a) and (h). He claimed he was not a prohibited possessor because he had not been convicted of a felony at the time of his weapons offense because he had merely entered a guilty plea and had not yet been sentenced in the earlier case. He also asserted, citing Lambert v. California, 355 U.S. 225 (1957), that he lacked adequate notice that he was a convicted felon at the time he possessed the firearm. The trial court summarily denied relief, and this petition for review followed.
¶4 On review, Lescarbeau first repeats his argument that he cannot be convicted of prohibited possession of a firearm because he was not a prohibited possessor. See Ariz. R. Crim. P. 32.1(h) (defendant entitled to relief if he "demonstrates by clear and convincing evidence that the facts underlying the claim would be sufficient to establish that no reasonable fact-finder would find the defendant guilty beyond a reasonable doubt"). Section 13-3102(A)(4), A.R.S., provides that a person commits weapons misconduct by "[p]ossessing a deadly weapon or prohibited weapon if such person is a prohibited possessor." Relevant here, a "prohibited possessor" is any person "[w]ho has been convicted . . . of a felony . . . and whose civil right to possess or carry a gun or firearm has not been restored." A.R.S. § 13-3101(A)(7)(b).
A guilty plea generally precludes a claim of innocence. See State v. Norgard, 92 Ariz. 313, 315 (1962) (characterizing as "frivolous" motion to withdraw from plea when "the only basis given . . . was that the defendant apparently changed his mind and claimed to be innocent"); State v. Quick, 177 Ariz. 314, 316 (App. 1993) (pleading defendant waives all nonjurisdictional defects unrelated to validity of plea). As Lescarbeau does here, however, a defendant may claim pursuant to Rule 32 that the factual basis for a guilty plea was insufficient as a matter of law. See, e.g., State v. Johnson, 181 Ariz. 346, 348-51 (App. 1995). --------
¶5 Lescarbeau's argument hinges on whether a person who has been "convicted" as that term is used in § 13-3101(A)(7)(b) includes a person who has pleaded guilty to an offense but has not yet been sentenced. Our supreme court has concluded the "popular meaning of the word" conviction means that a person has been convicted "after a determination of guilt is made" even when no sentence or judgment has been imposed. State v. Green, 174 Ariz. 586, 587 (1993). The court has further held that "[o]ne is convicted when there has been a determination of guilt by verdict, finding, or the acceptance of a plea." State v. Thompson, 200 Ariz. 439, ¶ 7 (2001). "Sentencing is not required." Id. Here, the trial court accepted Lescarbeau's plea in CR20162211 before he committed the acts charged. Consequently, before he committed the acts in this case, Lescarbeau had been earlier convicted of a felony offense.
¶6 Lescarbeau relies primarily on State v. Barnett, 209 Ariz. 352 (2004), asserting that case is "similar." It is not. Barnett had pleaded guilty to two felony drug offenses and was released pending sentencing. Id. ¶ 2. While awaiting sentencing, Barnett was arrested for possessing a deadly weapon and was charged with being a prohibited possessor due to the drug offense plea. Id. ¶ 3. The trial court held that the prohibited possessor charge was properly dismissed because Barnett had not yet been convicted of the two prior drug offenses at the time of his arrest on weapons charges. Id. ¶ 18. The court, however, had to "assume that, [at the time] he was arrested . . . Barnett had not yet been convicted" for the drug offenses. Id. ¶ 8. Neither party argued that he had been convicted. Id. Nor did the record reflect whether the trial court accepted Barnett's guilty plea on the earlier charges. Id. n.3. The record did reflect a concession by the state that no judgment of guilt had yet been entered on the drug charges at the time of his arrest as a prohibited possessor. Id. Here, because the court accepted Lescarbeau's plea at the time he pleaded to the charges and before he committed the weapons offense, this case is fundamentally different from Barnett.
¶7 In passing, Lescarbeau suggests that, under the rule of lenity, we should interpret "convicted" to exclude defendants not yet sentenced. The rule of lenity "applies in a criminal case 'when a statute is ambiguous and dictates that any doubt about statutory construction be resolved in favor of a defendant.'" Taylor v. Cruikshank, 214 Ariz. 40, ¶ 25 (App. 2006), quoting State v. Fell, 203 Ariz. 186, ¶ 10 (App. 2002). Lescarbeau has waived this argument by failing to adequately develop it. See State v. Stefanovich, 232 Ariz. 154, ¶ 16 (App. 2013).
¶8 Lescarbeau also repeats his claim that he lacked adequate notice that possessing a firearm after pleading guilty to a felony constitutes a crime, therefore violating his right to due process. Even if we agreed he lacked sufficient notice, however, Lescarbeau's guilty plea waives all nonjurisdictional defects unrelated to the validity of the plea. See State v. Quick, 177 Ariz. 314, 316 (App. 1993). To the extent he argues that his lack of notice made his plea "incompetent," he does not develop this argument in any meaningful way; thus, we do not address it. See Stefanovich, 232 Ariz. 154, ¶ 16. For the same reason, we do not address his unsupported assertion that counsel was ineffective for allowing him to enter a guilty plea. See id.
¶9 Because Lescarbeau had pleaded guilty to a felony as the term is used in § 13-3101(A)(7)(b) before committing the offense in this case, the trial court did not err in rejecting Lescarbeau's claim pursuant to Rule 32.1(h). We grant review but deny relief.