Opinion
No. 2 CA-CR 2018-0348
12-31-2019
THE STATE OF ARIZONA, Appellant, v. GEORGE ALLEN HARTMAN, Appellee.
COUNSEL Barbara LaWall, Pima County Attorney By Jacob R. Lines, Deputy County Attorney, Tucson Counsel for Appellant Erin E. Duffy, Tucson Counsel for Appellee
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NOT FOR PUBLICATION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. CR20165557001
The Honorable Deborah Bernini, Judge
VACATED AND REMANDED
COUNSEL Barbara LaWall, Pima County Attorney
By Jacob R. Lines, Deputy County Attorney, Tucson
Counsel for Appellant Erin E. Duffy, Tucson
Counsel for Appellee
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Chief Judge Vásquez and Judge Brearcliffe concurred. STARING, Presiding Judge:
¶1 Following a 2018 jury trial, George Hartman was convicted of fraudulent scheme and artifice and failure to give notice of change of address. The trial court suspended the imposition of sentence and placed Hartman on concurrent three-year terms of probation. On appeal, the state challenges the court's determination that Hartman is eligible for probation. We vacate and remand for resentencing.
Factual and Procedural Background
¶2 In connection with sentencing, the state alleged Hartman had three prior felony convictions. At the priors trial, the state presented evidence of the alleged prior convictions, and argued Hartman's conviction for a 1992 sexual assault was a historical prior felony conviction under A.R.S. § 13-105(22)(a)(i), because it had mandated a term of imprisonment. As such, the state argued Hartman was not eligible for probation and must be sentenced as a repetitive offender. The court disagreed and explained: "I've made a finding [the state has] not proved historical prior felony convictions. [The state has] proved felony convictions for purposes of arguing for an aggravated sentence at sentencing. But [the state has] not proven even one historical prior felony conviction." The minute entry indicates the only prior felony conviction that the state had proved was the 1992 sexual assault, but that it did not qualify as a historical prior felony conviction because "[t]hat sentence was completed more than ten years ago."
"Historical prior felony conviction" means: (a) any prior felony conviction that falls within one of five specific types of offenses, including one for which a term of imprisonment was mandated; (b) any class two or three felony not addressed in subsection (a) that was committed within ten years of the present offense; (c) any class four, five, or six felony not addressed in subsection (a) that was committed within five years of the present offense; (d) any third or more felony conviction; (e) any felony committed outside Arizona within five years of the present offense; and (f) any offense committed outside Arizona involving the discharge, use, or threatening exhibition of a deadly weapon or the intentional or knowing infliction of death or serious injury. § 13-105(22). A defendant with at least one historical prior felony conviction is not eligible for probation and is subject to an enhanced sentence under A.R.S. § 13-703.
¶3 At sentencing, the state argued it had proven at least two non-historical prior felony convictions and, therefore, Hartman was not eligible for probation and instead must be sentenced as a category-two repetitive offender pursuant to A.R.S. § 13-703(A). The trial court then stated that "the priors had not been proven for a number of reasons," found Hartman was a non-dangerous, non-repetitive offender, suspended the imposition of sentence, and placed him on concurrent three-year terms of probation. This appeal by the state followed.
Jurisdiction
¶4 The state argues the trial court imposed an illegal sentence by finding Hartman eligible for probation and failing to sentence him as a repetitive offender under § 13-703(A). Section 13-4032(5), A.R.S., allows the state to appeal from "[a] sentence on the grounds that it is illegal, or if the sentence imposed is other than the presumptive sentence authorized by . . . § 13-703." "The trial court's failure to impose a sentence in conformity with the mandatory provisions of the sentencing statute makes that sentence 'illegal' within the meaning of [§ 13-4032(5)], and therefore properly appealable." State v. Dawson, 164 Ariz. 278, 281 (1990); see also State v. House, 169 Ariz. 572, 573 (App. 1991) (sentence generally illegal if outside statutory range). Thus, we have jurisdiction pursuant to article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1) and 13-4032(5).
Discussion
¶5 As noted, the state argues the trial court erred in finding Hartman eligible for probation and was required to sentence him as a repetitive offender under § 13-703(A). The state asserts the court's decision was based on an erroneous determination of how to count felony convictions for purposes of sentence enhancement. The state also contends it proved at least two of the three prior felony convictions it alleged at the priors trial.
Because we vacate and remand on other grounds, we need not address this argument. --------
¶6 A trial court's determination of whether a prior conviction constitutes a historical prior felony conviction for the purpose of sentence enhancement is a mixed question of fact and law, which we review de novo. State v. Derello, 199 Ariz. 435, ¶ 8 (App. 2001). Similarly, to address whether Hartman is eligible for probation, "we must determine the meaning and correct application of certain statutes, which involves questions of law that we review de novo." See State v. Smith, 228 Ariz. 126, ¶ 12 (App. 2011); see also State ex rel. Romley v. Hauser, 209 Ariz. 539, ¶ 4 (2005). We ordinarily begin with the plain text of a statute because it is the "best and most reliable index of a statute's meaning" and, when the plain text is clear and unambiguous, we need not resort to other methods of interpretation. See State v. Christian, 205 Ariz. 64, ¶ 6 (2003).
¶7 Here, although the trial court stated at sentencing that "the priors had not been proven for a number of reasons," it also found at the priors trial that the state had proven Hartman's prior felony conviction for sexual assault. And, although the state does not argue on appeal that Hartman's alleged prior sexual assault conviction was a historical prior felony conviction, we conclude otherwise in our de novo review.
¶8 The definition of "historical prior felony conviction," includes "[a]ny prior felony conviction for which the offense of conviction . . . [m]andated a term of imprisonment." § 13-105(22)(a)(i). In 1992, when Hartman committed sexual assault, that offense mandated a term of imprisonment. See 1989 Ariz. Sess. Laws, ch. 199, § 1; A.R.S. § 13-1406(B). Because the state proved Hartman's prior felony conviction for sexual assault, it necessarily proved the existence of a historical prior felony conviction. See § 13-105(22)(a)(i).
¶9 Section 13-703 provides the sentencing guidelines for repetitive offenders, including those who, like Hartman, have one historical prior felony conviction: "[A] person shall be sentenced as a category two repetitive offender if the person is at least eighteen years of age or has been tried as an adult and stands convicted of a felony and has one historical prior felony conviction." § 13-703(B). Such an offender is then sentenced within the range provided in § 13-703(I). And, § 13-703(O) plainly states: "A person who is sentenced pursuant to this section is not eligible for suspension of sentence, probation, pardon or release from confinement . . . ." Thus, Hartman is ineligible for probation and must be sentenced as a repetitive offender pursuant to § 13-703.
Disposition
¶10 We vacate Hartman's probationary term and remand this matter for resentencing consistent with this decision.