Opinion
No. 2 CA-CR 2014-0147
01-06-2015
THE STATE OF ARIZONA, Appellee, v. DERRICK BERRY FONTENOT, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel By Craig W. Soland, Assistant Attorney General, Phoenix Counsel for Appellee Emily Danies, Tucson 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NOT FOR PUBLICATION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 Pima county
No. CR20131950001
The Honorable Javier Chon-Lopez, Judge
AFFIRMED IN PART; VACATED AND REMANDED IN PART
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel
By Craig W. Soland, Assistant Attorney General, Phoenix
Counsel for Appellee
Emily Danies, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Vásquez authored the decision of the Court, in which Presiding Judge Kelly and Judge Howard concurred. VÁSQUEZ, Judge:
¶1 After a jury trial, Derrick Fontenot was convicted of aggravated driving under the influence of an intoxicant (DUI), specifically: DUI with a suspended license and driving with an alcohol concentration (AC) at or above .08 with a suspended license. He was sentenced to concurrent, mitigated prison terms of eight years.
¶2 Counsel has filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), and State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999), asserting she has reviewed the record but found no arguable issue to raise on appeal. Consistent with Clark, 196 Ariz. 530, ¶ 32, 2 P.3d at 97, she has provided "a detailed factual and procedural history of the case with citations to the record" and asks this court to search the record for error. Fontenot has filed a supplemental brief arguing the trial court erred in denying a motion to suppress based on his invocation of his right to counsel and in sentencing him as a category three repetitive offender. We ordered the parties to submit supplemental briefs addressing Fontenot's latter argument. We affirm Fontenot's convictions but vacate his sentences and remand the case for resentencing.
¶3 Viewing the evidence in the light most favorable to sustaining the verdicts, see State v. Tamplin, 195 Ariz. 246, ¶ 2, 986 P.2d 914, 914 (App. 1999), sufficient evidence supports the jury's verdicts. In April 2013, police officers stopped Fontenot's vehicle for an expired license tag, and Fontenot admitted his driver license was suspended. Fontenot exhibited several signs of intoxication and officers discovered an open bottle of whiskey in his vehicle. An officer administered field-sobriety tests, and Fontenot exhibited numerous intoxication cues. Subsequent breath testing showed his AC to be .132 and .134. The evidence also supported the jury's determination that, when Fontenot committed the instant offenses, he was on release in a pending matter in Maricopa County.
¶4 In his supplemental brief, Fontenot argues the trial court erred in denying his motion to suppress evidence obtained during the traffic stop. As he does on appeal, in his motion below, Fontenot claimed that he had invoked his right to counsel but that officers did not allow him the opportunity to contact counsel and instead administered the breath tests.
¶5 In reviewing the trial court's denial of a motion to suppress evidence, we consider only the evidence presented at the suppression hearing and view that evidence in the light most favorable to sustaining the court's ruling. State v. Kinney, 225 Ariz. 550, ¶ 2, 241 P.3d 914, 917 (App. 2010). Evidence at the hearing demonstrated that Fontenot, in response to being advised of his right to counsel, informed the officer that he wished to have counsel present before any questioning. The officers asked no further investigatory questions of Fontenot and, before administering the breath tests, confirmed that he only wanted counsel before questioning but not before testing.
¶6 When a defendant "invokes the right to counsel for a particular purpose, such limited invocation may not 'operate as a request for counsel for all purposes.'" State v. Nevarez, 235 Ariz. 129, ¶ 14, 329 P.3d 233, 239 (App. 2014), quoting State v. Uraine, 157 Ariz. 21, 22, 754 P.2d 350, 351 (App. 1988). In light of Fontenot's limited invocation of his right to counsel—which was confirmed by the officer before he proceeded to administer the breath tests—we have no basis to conclude the trial court abused its discretion in denying Fontenot's motion to suppress. See State v. Waller, 235 Ariz. 479, ¶ 5, 333 P.3d 806, 810 (App. 2014) ("We review the denial of a motion to suppress evidence for an abuse of discretion.").
¶7 Fontenot next argues the trial court erred in sentencing him as a category three repetitive offender. The state concedes error, and we agree. After an evidentiary hearing, the court found Fontenot previously had committed and been convicted in Arizona of aggravated DUI in 2006, making a false statement to obtain employment benefits in 2001, and theft by misrepresentation in 1992-1993. The court further found that Fontenot had been convicted in Oklahoma in 1988 of one felony, specifically "carrying a concealed weapon, after former conviction of a felony." Consistent with those findings, the court sentenced Fontenot as a category three repetitive offender. See A.R.S. § 13-703(C), (J).
After the state informed the trial court it did not plan to rely on two other alleged Oklahoma convictions—a 1987 conviction for concealing stolen property and a 1992 conviction for burglary, the court granted Fontenot's motion to strike those convictions. We express no opinion whether the state should be permitted to allege on remand those convictions as a basis for an enhanced sentence. See Bennett v. Brownlow, 211 Ariz. 193, ¶ 16, 119 P.3d 460, 463 (2005) (courts should "refrain from issuing advisory opinions").
¶8 In order to sentence Fontenot as a category three repetitive offender, the trial court was required to find he had two historical prior felony convictions. See § 13-703(C). Fontenot's previous aggravated DUI conviction is a historical prior felony conviction, see A.R.S. § 13-105(22)(a)(iv), but his other Arizona convictions are too remote in time to qualify as historical prior felony convictions standing alone, see § 13-105(22)(c). Pursuant to § 13-105(22)(d), however, a historical felony includes "[a]ny felony conviction that is a third or more prior felony conviction." Thus, if Fontenot's Oklahoma felony conviction qualifies, his conviction for making a false statement is at least his third felony conviction.
¶9 Fontenot first argues that his 1988 weapons conviction cannot be considered in calculating his status as a repetitive offender because it was for "conce[a]ling a firearm" and is "total[l]y different" than possessing a firearm as a prohibited possessor under Arizona law. As the state correctly points out, Arizona generally does not require that a foreign conviction constitute a felony in Arizona for that conviction to be treated as a felony for sentence enhancement purposes. A.R.S. §§ 13-105(22)(e), (f); 13-703(M). However, a conviction for "felony weapons possession" is exempt from this general rule, and such a conviction may be used for sentence enhancement only if it would be punishable "as a felony under the laws of this state." §§ 13-105(22)(e); 13-703(M).
¶10 Accordingly, we must determine whether Fontenot's Oklahoma conviction constitutes a felony under Arizona law. To do so, we evaluate whether the foreign conviction "includes 'every element that would be required to prove an enumerated Arizona offense.'" State v. Crawford, 214 Ariz. 129, ¶ 7, 149 P.3d 753, 755 (2007), quoting State v. Ault, 157 Ariz. 516, 521, 759 P.2d 1320, 1325 (1988). And we consider only the statutory definition of the foreign crime, not the underlying facts. Id.
¶11 Fontenot was convicted in Oklahoma pursuant to Okla. Stat. tit. 21, § 1283 (1987), which provided at the time of his conviction that it is unlawful for a person "having previously been convicted of any felony . . . to have in his possession or under his immediate control, or in any vehicle which he is operating, or in which he is riding as a passenger, any . . . firearm which could be easily concealed on the person, in personal effects or in an automobile." In Arizona, a person previously convicted of a felony whose right to possess a weapon has not been restored commits misconduct involving weapons if he or she "possess[es] a deadly weapon or prohibited weapon." A.R.S. § 13-3102(A).
¶12 The elements test is not met here because the Oklahoma statute criminalizes conduct that would not violate Arizona law. A convicted felon violates the Oklahoma statute merely by being a passenger in a vehicle knowing it contains a concealable weapon, even if the person did not actually or constructively possess the weapon. Okla. Stat. tit. 21, § 1283 (1987); Dear v. State, 773 P.2d 760, 761 (Okla. Crim. App. 1989) ("knowledge" implicit element of offense). Conversely, under Arizona law, the defendant must actually or constructively possess the weapon. See § 13-3102(A); State v. Gonsalves, 231 Ariz. 521, ¶ 9, 297 P.3d 927, 929 (App. 2013). Additionally, the list of items prohibited by the Oklahoma statute in effect at the time of Fontenot's conviction encompasses "imitation" weapons that would not constitute a "deadly weapon or prohibited weapon" under Arizona law. Okla. Stat. tit. 21, § 1283 (1987); A.R.S. § 13-105(15), (19) (deadly weapon does not include "permanently inoperable" firearm); Sims v. State, 762 P.2d 270, 272 (Okla. Crim. App. 1988) (legislative intent "was to keep guns, real or imitation, out of the possession or control of felons" thus "[w]hether or not the pistol is capable of firing is not an element" of offense). Thus, the trial court erred in relying on Fontenot's Oklahoma weapons conviction in imposing an enhanced sentence.
¶13 Fontenot further claims that his false-statement conviction was for a "class 6 undesignated felony" and the prosecutor failed to show "it wasn't designated as a misdemeanor." Section 13-604(A) permits a trial court, in certain circumstances, to designate a class-six felony as a misdemeanor. But that designation was not available to Fontenot, who previously had been convicted of several felony offenses. See § 13-604(A). And, moreover, even if the offense could have been designated a misdemeanor, it must "be treated as a felony for all purposes until such time as the court may actually enter an order" doing so. Id. We find no authority suggesting the state is required to demonstrate such an order was never entered in order to prove a previous felony conviction. And we have reviewed the record and are satisfied the evidence presented to the trial court is sufficient to support its prior-conviction finding. See State v. Cons, 208 Ariz. 409, ¶ 15, 94 P.3d 609, 615 (App. 2004) ("[P]rior convictions for sentence enhancement purposes must be established by clear and convincing evidence.").
¶14 Pursuant to our obligation under Anders, we have searched the record for fundamental, reversible error. See State v. Fuller, 143 Ariz. 571, 575, 694 P.2d 1185, 1189 (1985) (stating Anders requires court to search record for fundamental error). We find no such error related to Fontenot's convictions but have determined the trial court erred in sentencing Fontenot as a category three repetitive offender. We have otherwise rejected the claims raised in Fontenot's supplemental brief. Accordingly, we affirm his convictions, but we vacate the sentences imposed and remand the case for resentencing.