Opinion
No. 1 CA-CR 13-0388
02-04-2014
STATE OF ARIZONA, Appellee, v. RAYMOND MICHAEL CONOBOY, Appellant.
Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee White Law Offices, PLLC, Flagstaff By Wendy F. White Counsel for Appellant
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Yavapai County
No. V1300CR201280327
The Honorable Michael R. Bluff, Judge
AFFIRMED AS MODIFIED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
White Law Offices, PLLC, Flagstaff
By Wendy F. White
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Peter B. Swann delivered the decision of the Court, in which Judge Patricia K. Norris and Chief Judge Diane M. Johnsen joined. SWANN, Judge:
¶1 Defendant Raymond Michael Conoboy appeals his conviction and sentence for aggravated domestic violence, a class 5 felony. This case comes to us as an appeal under Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Defendant's appellate counsel has searched the record on appeal and found no arguable, nonfrivolous question of law, and asks us to review the record for fundamental error. See Anders, 386 U.S. 738; Smith v. Robbins, 528 U.S. 259 (2000); State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). Defendant was given the opportunity to file a supplemental brief in propria persona but did not do so.
¶2 For the following reasons, we affirm Defendant's conviction and sentence but modify the sentence by adding three days of presentence incarceration credit.
FACTS AND PROCEDURAL HISTORY
¶3 Defendant was arrested on June 24, 2012, and charged by information with one count of aggravated domestic violence against his girlfriend, a class 5 felony under A.R.S. § 13-3601.02 ("Count I"); two counts of disorderly conduct against two separate neighbors, class 1 misdemeanors under A.R.S. § 13-2904 ("Count II" and "Count III"); and one count of interfering with judicial proceedings, a class 1 misdemeanor under A.R.S. § 13-2810 ("Count IV"). Defendant pled not guilty to all counts and the court dismissed Count IV before the matter proceeded to trial by jury.
¶4 At trial, the state presented evidence of the following facts. In the late evening of June 23, 2012, Defendant and his girlfriend were arguing at their home. A neighbor reported a disturbance but the responding sheriff's deputy was unable to make contact with Defendant or anyone else at that time. Defendant's girlfriend testified that Defendant had left before the deputy arrived and that she had gone to bed thinking Defendant would not come back that evening. But Defendant soon returned and continued arguing with his girlfriend in a "very mad" state of mind. He eventually went outside again, at which point his girlfriend locked the back door and ran to hold the front security door locked to prevent him from reentering.
¶5 The same deputy who had investigated the earlier disturbance again arrived at the scene in response to a disturbance call from a different neighbor. The deputy approached the house and witnessed Defendant rapidly pacing back and forth on the front porch. Defendant was yelling to be let in using "a very, very, very loud tone" while banging on both sides of the security door. He shook the door handle and "grabbed the entire frame of the door and began jostling back and forth . . . [as if] he was trying to literally pull it off of its . . . hinges." Seemingly frustrated, Defendant walked off the porch and yelled through the door, "I'm kicking you out" and "you better be gone by morning." Defendant, unaware that the deputy had been watching him, was then arrested as he attempted to leave shortly after midnight. The deputy testified that Defendant had yelled loudly five or six times in the approximately 30 seconds between the deputy's arrival and Defendant's arrest.
¶6 During trial, the state also introduced evidence that Defendant had been convicted of three domestic violence offenses in the preceding 84 months. To avoid prejudice to Defendant, the court ruled beforehand that the state had to sanitize details of the underlying offenses. The court ultimately admitted a redacted copy of a certified pen pack and redacted copies of certified domestic violence convictions dated May 16, 2006; December 23, 2008; and January 12, 2012. The admitted documents showed that Defendant had committed the underlying offenses on May 4, 2006; July 5, 2008; and December 12, 2011, respectively. To authenticate this evidence, the state called a probation officer who testified that she had supervised Defendant after his May 16 conviction; a fingerprint expert who identified Defendant's fingerprints on the May 16 and December 23 convictions; and a deputy who had cited Defendant on a charge with the same cause number as the January 12 conviction.
¶7 At the end of trial on April 25, 2013, the jury found Defendant guilty of Count I and acquitted him of Count II and Count III. The court imposed a five-year prison sentence and granted 28 days of presentence incarceration credit. Defendant timely appeals.
DISCUSSION
¶8 Our review of the record reveals no reversible error. Defendant was present and represented by counsel at all critical stages. There is no evidence of jury misconduct and the jury was properly comprised of eight jurors. See A.R.S. § 21-102(B); Ariz. R. Crim. P. 18.1(a). The court ordered and considered a presentence report, gave Defendant an opportunity to speak at sentencing, and stated on the record the evidence it considered in imposing sentence. The court properly sentenced Defendant as a category three repetitive offender under A.R.S. § 13-703(C) upon finding two historical prior felony convictions. The state presented evidence of aggravating factors, Defendant did not present any mitigating factors, and the court acted within its discretion in imposing the presumptive five-year prison term for Defendant's conviction of a class five felony. See A.R.S. §§ 13-703(J), -3601.02(F). Defense counsel suggests that the court may have erred by using one of Defendant's prior domestic violence convictions both as an element of Count I and to enhance his sentence for that crime, but concludes that "any argument in support of [that] issue would be frivolous." We agree with counsel's assessment. Our "reme court has previously confirmed that an element of the underlying offense can also be used to trigger sentence enhancement." State v. Greene, 182 Ariz. 576, 580, 898 P.2d 954, 958 (1995) (citing State v. Caldera, 141 Ariz. 634, 637-38, 688 P.2d 642, 645-46 (1984)).
¶9 Although the court imposed a proper sentence, it erred by granting Defendant only 28 days of presentence incarceration credit when the record reflects his entitlement to 31 days. A defendant deserves presentence incarceration credit for "[a]ll time actually spent in custody pursuant to an offense until the prisoner is sentenced." A.R.S. § 13-712(B). When calculating that credit, we include each day of presentence custody except for the day of sentencing. State v. Hamilton, 153 Ariz. 244, 245-46, 735 P.2d 854, 855-56 (App. 1987). In this calculation, "custody" begins when a defendant is booked into a detention facility. State v. Carnegie, 174 Ariz. 452, 453-54, 850 P.2d 690, 691-92 (App. 1993). Here, Defendant was booked into custody on June 24, 2012, and released on bail on June 29, 2012. He was then convicted on April 25, 2013, and remanded into custody until sentencing on May 20, 2013. Because this means Defendant was incarcerated for 31 days, we modify his sentence to add three days of presentence incarceration credit. See Ariz. R. Crim. P. 31.17(b); State v. Stevens, 173 Ariz. 494, 495-96, 844 P.2d 661, 662-63 (App. 1992) (correcting miscalculated presentence incarceration credit by modifying sentence without remanding to trial court).
¶10 We further conclude that the state's evidence was properly admissible and sufficient to support Defendant's conviction. "A person is guilty of aggravated domestic violence if the person within a period of eighty-four months commits a third or subsequent violation of a domestic violence offense . . . ." A.R.S. § 13-3601.02(A). "Domestic violence offense" incorporates certain classifications of disorderly conduct committed while the defendant and the victim reside together or are in a romantic or sexual relationship. A.R.S. §§ 13-2904; -3601(A)(1), (6); -3601.02(G). A person commits one such classification of disorderly conduct if the person "with intent to disturb the peace or quiet of . . . [another] person, or with knowledge of doing so, . . . [m]akes unreasonable noise." A.R.S. § 13-2904(A)(2). In this case, Defendant entered the residence he shared with his girlfriend after she had gone to bed, argued with her to the point that a neighbor reported a disturbance, and continued yelling at her while pounding on and jostling the front door after she locked him out. Moreover, the admitted evidence showed that Defendant had committed and been convicted of three domestic violence offenses within 84 months of committing Count I.
¶11 However, the jury instructions used at trial did not correctly state the law. In pertinent part, the instructions read:
COUNT I - defendant is charged with Aggravated Domestic Violence - Disorderly Conduct, which crime requires proof of the following:(Emphases removed.) In State v. Gaynor-Fonte, 211 Ariz. 516, 518-19, ¶¶ 13-16, 123 P.3d 1153, 1155-56 (App. 2005), we held that even though A.R.S. § 13-3601.02(A) defines aggravated domestic violence as the commission of a third or subsequent domestic violence offense within the statutory timeframe, the state must actually prove two or more prior convictions of such offenses. Paragraph 3 of the instructions at bar properly incorporates our holding in Gaynor-Fonte. But paragraph 4 misstates the law of aggravated domestic violence: A.R.S. § 13-3601.02(D) plainly provides that "[t]he dates of the commission of the offenses are the determining factor in applying the eighty-four month provision in subsection A of this section" (emphasis added).
1. The defendant, with intent to disturb the peace or quiet of a person, or with knowledge of doing so, . . . makes unreasonable noise; and
2. The crime was a domestic violence offense; and
3. The defendant has been convicted of two or more domestic violence offenses; and
4. All the prior domestic violence convictions occurred within eighty-four months of the date of the current offense.
The instructions used at Defendant's trial are consistent with the Revised Arizona Jury Instructions ("RAJI"), from which paragraphs 3 and 4 are copied verbatim. Rev. Ariz. Jury Instr. ("RAJI") (Criminal), at 433-34 (3d ed. Supp. 2010). The RAJI cites A.R.S. § 13-3601.02(A) and Gaynor-Fonte, but makes no mention of § 13-3601.02(D). See RAJI (Criminal), at 434.
¶12 To prove a defendant guilty of aggravated domestic violence, the state must thus establish both that he has two or more prior domestic violence convictions and that he committed the underlying offenses within 84 months of committing the current domestic violence charges. See A.R.S. § 13-3601.02(D); Gaynor-Fonte, 211 Ariz. at 518-19, ¶¶ 13-16, 123 P.3d at 1155-56. Here, the jury was not so instructed. And the state perpetuated this error by telling the jury to "decide, based on the evidence, whether the defendant ha[d] three prior domestic violence convictions within 84 months." See State v. Valverde, 220 Ariz. 582, 586, ¶ 16, 208 P.3d 233, 237 (2009) ("In assessing the impact of an erroneous instruction, we also consider the attorneys' statements to the jury."). Notwithstanding the error, we conclude that Defendant was not prejudiced thereby because the admitted evidence of his prior domestic violence convictions also contained the dates on which he committed the underlying offenses, which all fell within 84 months of the date he committed Count I. See State v. Henderson, 210 Ariz. 561, 567, ¶ 20, 115 P.3d 601, 607 (2005) ("To prevail under [fundamental error] standard of review, a defendant must establish both that fundamental error exists and that the error in his case caused him prejudice."). Therefore, the "error [was not] of such magnitude that the defendant could not possibly have received a fair trial," State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984), and does not merit reversal.
CONCLUSION
¶13 For the foregoing reasons, we affirm Defendant's conviction and sentence as modified.
¶14 Defense counsel's obligations pertaining to this appeal have come to an end. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Unless, upon review, counsel discovers an issue appropriate for petition for review to the Arizona Supreme Court, counsel must only inform Defendant of the status of this appeal and Defendant's future options. Id. Defendant has 30 days from the date of this decision to file a petition for review in propria persona. See Ariz. R. Crim. P. 31.19(a). Upon the court's own motion, Defendant has 30 days from the date of this decision in which to file a motion for reconsideration.