Opinion
No. 2 CA-CR 2018-0066
05-28-2019
THE STATE OF ARIZONA, Appellee, v. ABRAHAM ANTONIO GARCIA, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Alexander M. Taber, Assistant Attorney General, Tucson Counsel for Appellee Joel Feinman, Pima County Public Defender By Abigail Jensen, Assistant Public Defender, 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NOT FOR PUBLICATION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. 31.19(e). Appeal from the Superior Court in Pima County
No. CR20161060001
The Honorable Kenneth Lee, Judge
AFFIRMED IN PART; VACATED IN PART AND REMANDED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Alexander M. Taber, Assistant Attorney General, Tucson
Counsel for Appellee Joel Feinman, Pima County Public Defender
By Abigail Jensen, Assistant Public Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Judge Vásquez and Judge Brearcliffe concurred. STARING, Presiding Judge:
¶1 Abraham Garcia appeals from his convictions for two counts of kidnapping; two counts of sexual assault; and one count each of aggravated assault with a deadly weapon, sexual abuse, and preventing the use of a telephone in an emergency. He argues the trial court erred by imposing a flat-time sentence on one of his kidnapping convictions (count one). For the reasons that follow, we vacate the sentence on count one and remand only for resentencing on that count.
Our disposition of this matter does not disturb any of Garcia's convictions or sentences on any counts other than count one.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding Garcia's convictions. See State v. Allen, 235 Ariz. 72, ¶ 2 (App. 2014). In 2016, M.P. walked to the store with her infant son. Garcia approached them from behind on a pathway next to a wash. He put a gun to M.P.'s head, told her "to move," and directed her down into the wash. M.P. complied, carrying the baby. When M.P.'s phone began vibrating, Garcia took it from her and threw it aside. Still at gunpoint, Garcia forced M.P. to continue walking until they reached a culvert. There, Garcia took the baby, placed him on a blanket, and repeatedly sexually assaulted M.P. Investigating officers discovered Garcia's fingerprints in the culvert, and, in his bedroom, a revolver and clothes matching the description provided by M.P. And, Garcia's DNA matched samples on swabs obtained from M.P.
¶3 Garcia was indicted for two counts of kidnapping; two counts of sexual assault; and one count each of aggravated assault with a deadly weapon, child abuse, sexual abuse, and preventing the use of a telephone in an emergency. The trial court subsequently dismissed the child abuse count, at the state's request. The jury found Garcia guilty on all remaining counts, and also found that all the felony counts were dangerous offenses. The court subsequently sentenced him to consecutive, presumptive prison terms totaling fifty-nine years. This appeal followed. We have jurisdiction pursuant to article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
The court sentenced Garcia to time served for preventing use of a telephone in an emergency.
Discussion
¶4 Garcia argues the trial court erred by imposing a flat-time sentence on his conviction for kidnapping in count one. Because Garcia did not raise this issue below, we review his claim only for fundamental error. See Ariz. R. Crim. P. 24.3(a); State v. Escalante, 245 Ariz. 135, ¶ 12 (2018). But "[t]he imposition of an illegal sentence is fundamental error." State v. Gonzalez, 216 Ariz. 11, ¶ 2 (App. 2007). Further, imposition of a sentence not "in conformity with mandatory sentencing statutes makes the resulting sentence illegal." State v. Cox, 201 Ariz. 464, ¶ 13 (App. 2002) (quoting State v. Carbajal, 184 Ariz. 117, 118 (App. 1995)). And we review de novo the trial court's interpretation and application of those statutes. See State v. Joyner, 215 Ariz. 134, ¶ 5 (App. 2007). "Courts have power to impose sentences only as authorized by statute and within the limits set by the legislature." In re Webb, 150 Ariz. 293, 294 (1986).
A defendant who fails to object at trial forfeits the right to appellate relief unless he can show trial error exists, and that the error went to the foundation of the case, took from him a right essential to his defense, or was so egregious that he could not possibly have received a fair trial. See Escalante, 245 Ariz. 135, ¶ 21. If a defendant can show an error went to the foundation of the case or deprived him of a right essential to his defense, he must also separately show prejudice resulted from the error. Id. If a defendant shows the error was so egregious he could not have received a fair trial, however, he has necessarily shown prejudice and must receive a new trial. Id.
¶5 The court sentenced Garcia to flat time on counts one through four, but stated he was "eligible for the 85 percent time" on counts five and seven. In count one, Garcia was convicted of kidnapping M.P. See A.R.S. § 13-1304(A)(3). The jury found that it was a dangerous offense and that Garcia had committed it for his sexual gratification. As noted, the trial court sentenced him as a dangerous offender, and imposed the presumptive, 10.5-year prison term to be "served in full." A.R.S. § 13-704(A). Similarly, at sentencing, the court stated that count one "will be flat time."
¶6 Concerning count one, Garcia claims that he "is eligible for earned-release credits and the other forms of early release specified in [A.R.S. § 13-704(G)], and that the trial court committed fundamental, prejudicial error" by making his sentence "flat time." A sentence with eligibility for earned-release credits affords the defendant the ability to earn release credit of "one day for every six days served." See A.R.S. § 41-1604.07(A). In contrast, when a defendant receives what is commonly referred to as a "flat-time sentence," the defendant must serve a full "calendar year" for each year of imprisonment imposed. See A.R.S. § 13-105(4); Galaz v. Stewart, 207 Ariz. 452, n.1 (2004). Here, the state argues that the court had discretion to impose a flat-time sentence, and that the earned-release-credits statute "expressly prohibits individuals sentence[d] to serve a full sentence from receiving earned release credits."
¶7 Statutory interpretation begins with the text of the statute because the plain text is the best and most reliable indicator of the statute's meaning. See State v. Christian, 205 Ariz. 64, ¶ 6 (2003). "When the plain text of a statute is clear and unambiguous there is no need to resort to other methods of statutory interpretation . . . ." Id. And, we construe statutory provisions in context with other related provisions and their place in the statutory scheme. See State v. Reyes, 238 Ariz. 304, ¶ 14 (App. 2015).
¶8 Section 13-704(G) provides that a person sentenced for a dangerous offense "is not eligible for suspension of sentence, probation, pardon, or release from confinement on any basis . . . until the sentence imposed by the court has been served, the person is eligible for release pursuant to § 41-1604.07 or the sentence is commuted." Under § 41-1604.07(A), prisoners accumulate earned-release credit "except for those prisoners who are sentenced to serve the full term of imprisonment imposed by the court." The statute for Garcia's substantive offense of kidnapping, § 13-1304, is silent regarding release; therefore, the release provisions of § 13-704(G) control in this instance. See § 13-704(L) ("The release provisions prescribed by this section shall not be substituted for any penalties required by the substantive offense . . . .").
¶9 The state contends the plain language of § 13-704(G) supports its argument that the release provision does not expressly limit "a trial court from using its discretion . . . to order that a sentence be served in full." However, our supreme court has determined that a trial court may impose a flat-time sentence only when such a sentence is specifically authorized by statute. See Webb, 150 Ariz. at 294. Section 13-704(G) bars a defendant from receiving various forms of release, but only until the sentence has been served or commuted or "the person is eligible for release pursuant to § 41- 1604.07," the earned-release-credit statute. Thus, § 13-704(G) does not authorize a flat-time sentence, but instead authorizes eligibility for earned-release credits.
¶10 In contrast, the release provisions for counts two through four provide that the defendant "is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis except as specifically authorized by § 31-233, subsection A or B until the sentence imposed by the court has been served or commuted." A.R.S. § 13-705(H) (release provision for kidnapping of M.P.'s son); see also §§ 13-704(L), 13-1304, 13-1406(B) (release provision for sexual assault). The provisions thus lack any language regarding eligibility for earned-release credits.
¶11 The statutory provisions underlying counts five and seven, for which the trial court found Garcia was eligible for earned-release credits, have the same release provision as count one. See A.R.S. §§ 13-704(G) (providing earned-release-credits eligibility), 13-1204(A)(2), 13-1404. Further, § 13-704(A), the dangerous offender sentencing provision applicable to count one, does not require the court to impose the term of imprisonment for "calendar years." Cf. A.R.S. § 13-3407(E), (F); State v. Gutierrez, 240 Ariz. 460, ¶¶ 35-38 (App. 2016) (trial court had no discretion to make defendant eligible for earned-release credits where statute required calendar-year sentence); State v. Hasson, 217 Ariz. 559, ¶¶ 12-13, 16 (App. 2008).
¶12 Therefore, the release provisions' language is clear—the statutes underlying Garcia's convictions on counts two through four do not provide eligibility for earned-release credits, but counts one, five, and seven do. See Webb, 150 Ariz. at 294 (sentencing from court cannot deviate from language of statute). Accordingly, the trial court erred in sentencing Garcia to a flat-time sentence on count one. See Gonzalez, 216 Ariz. 11, ¶ 2; Cox, 210 Ariz. 464, ¶ 13.
We also reject the state's argument that the language, "except for those prisoners who are sentenced to serve the full term of imprisonment imposed by the court," § 41-1604.07, authorizes the trial court to impose a flat-time sentence. The state's interpretation contradicts the language in those release provisions which provide for earned-release credits eligibility, essentially authorizing flat-time sentences for every offense regardless of whether the release provision includes earned-release-credits language. If this was the legislature's intent, it would have amended the felony sentencing statutes. See Webb, 150 Ariz. at 294 (rejecting state's interpretation of similar language).
Disposition
¶13 For the foregoing reasons, we vacate Garcia's sentence on count one and remand the matter to the trial court for the limited purpose of resentencing on that count; we affirm his convictions and remaining sentences.
Garcia argues we should modify his sentence in count one to reflect his eligibility for earned-released credits. However, he did not raise this argument until his reply brief. See State v. Brown, 233 Ariz. 153, ¶ 28 (App. 2013) (arguments raised for first time in reply brief waived).