Opinion
No. 1 CA-CR 14-0850
10-27-2015
STATE OF ARIZONA, Appellee, v. WILLIE EUGENE ARBUCKLE, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Michael J. Dew, Attorney at Law, Phoenix By Michael J. Dew Counsel for Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Maricopa County
No. 2013-454182-001
The Honorable Michael W. Kemp, Judge
CONVICTION AFFIRMED; SENTENCE REMANDED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Michael J. Dew, Attorney at Law, Phoenix
By Michael J. Dew
Counsel for Appellant
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge Randall M. Howe and Judge Andrew W. Gould joined.
SWANN, Judge:
¶1 Defendant Willie Eugene Arbuckle appeals his conviction and sentence for disorderly conduct.
¶2 This case comes to us as an appeal under Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969). Defendant's appellate counsel searched the record on appeal, 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 (App. 1999). Counsel identifies two issues in particular for review: (1) whether the allegation of dangerousness should have been presented to the jury for a separate finding; and (2) whether the trial court erred in considering aggravating circumstances, not alleged by the state nor found by the jury, to impose a presumptive sentence on Defendant. Defendant did not file a supplemental brief.
¶3 Having searched the record and considered the briefing, we discern fundamental error in the sentencing phase. We therefore affirm the conviction and remand for sentencing consistent with this decision.
FACTS AND PROCEDURAL HISTORY
¶4 The state charged Defendant with aggravated assault and alleged dangerousness, under A.R.S. §§ 13-1203, -1204, and -105. The charge arose from a "road rage" incident at a stoplight, where Defendant displayed a firearm to the victim during an altercation. Defendant did not have any prior convictions, and the state did not allege any aggravating factors.
¶5 Before trial, Defendant requested additional instructions on the lesser-included offense of disorderly conduct under A.R.S. § 13-2904, which the court granted. Defense counsel maintained throughout that the jury needed to make a separate finding of dangerousness for either aggravated assault or disorderly conduct. The court decided that the dangerousness finding by the jury was not necessary because
dangerousness was inherent in aggravated assault, but did not mention whether it was inherent in disorderly conduct.
¶6 The court instructed the jury on the definition of dangerousness. The state objected to the instruction, and despite the defense request to the contrary, the court withdrew the instruction before the jury went to deliberate. The court instructed the jury that aggravated assault required proof that Defendant committed an assault and used a deadly weapon or dangerous instrument and that disorderly conduct required proof that Defendant knowingly or intentionally disturbed the peace or quiet of a person by recklessly displaying a deadly weapon or dangerous instrument.
¶7 The jury could not reach a verdict on the charge of aggravated assault, but found Defendant guilty of the lesser-included offense of disorderly conduct. The judge sentenced Defendant to 2.25 years of confinement, the presumptive term for a dangerous, class 6 felony with no prior offenses under A.R.S. § 13-704.
DISCUSSION
¶8 No facts in the record call into question the jury's determination of Defendant's guilt. The evidence presented at trial was sufficient to permit a guilty verdict on the disorderly conduct charge. The Defendant was present and represented by counsel at all critical stages of the proceedings. The correct number of jurors were seated without any issues of misconduct or bias. The prosecutor did not employ any improper arguments at trial.
¶9 The legality of the court's sentence, though, is at issue, and imposition of an illegal sentence is fundamental error. State v. Thues, 203 Ariz. 339, 340, ¶ 4 (App. 2002). "Dangerousness" under A.R.S. § 13-105 is a sentence enhancement under A.R.S. § 13-704. And "[g]enerally, an allegation of dangerousness must be found by a jury." State v. Larin, 233 Ariz. 202, 212, ¶ 38 (App. 2013); see also State v. Henderson, 210 Ariz. 561, 566, ¶ 13 (2005). The jury does not, however, need to make a finding of dangerousness when it is inherent in the offense. State v. Gatliff, 209 Ariz. 362, 366, ¶ 18 (App. 2004). To determine if dangerousness is inherent, courts compare the statutory definitions of the offense and of dangerousness. Larin, 233 Ariz. at 212, ¶ 38. The court then considers if "an element of the offense charged contains an allegation and requires proof" of dangerousness. State v. Parker, 128 Ariz. 97, 99 (1981).
¶10 The state contended that dangerousness was inherent in either aggravated assault or disorderly conduct, and consequently, the jury did not need to make a separate finding of dangerousness. For aggravated assault, the state is correct. To find a defendant guilty of aggravated assault, the jury would have to decide that he committed assault and "use[d] a deadly weapon or dangerous instrument." A.R.S. § 13-1204(A)(2) (emphasis added). A dangerous offense involves "the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument." A.R.S. § 13-105(13) (emphasis added). Use of a deadly weapon or dangerous instrument is part of the statutory definition of dangerous offense and aggravated assault.
¶11 Disorderly conduct, as a lesser-included offense of aggravated assault, however, requires that a person "recklessly handle[ ], display[ ] or discharge[ ] a deadly weapon or dangerous instrument" with the intent to disturb the peace or quiet of a person. A.R.S. § 13-2904(A)(6); see State v. Miranda, 200 Ariz. 67, 68, ¶¶ 2-3 (2001). The only overlap between disorderly conduct and dangerousness is "discharge" of a "deadly weapon," something not in the facts here. Thus, the elements of disorderly conduct here do not require a finding of "use or threatening exhibition of a deadly weapon" in order to find Defendant guilty of disorderly conduct. Therefore, dangerousness was not inherent in disorderly conduct and was a question for the jury.
¶12 While the jury found Defendant did "recklessly display" the weapon, it would be possible for the jury to conclude that he did not "use" or "threateningly exhibit" it. See State v. Serna, 235 Ariz. 270, 275, ¶ 22 (2014) ("In a state such as Arizona that freely permits citizens to carry weapons, both visible and concealed, the mere presence of a gun cannot provide reasonable and articulable suspicion that the gun carrier is presently dangerous."); Larin, 233 Ariz. at 213, ¶ 40 (stating that "it is conceivable for a defendant . . . to knowingly possess a deadly weapon or dangerous instrument without the discharge, use, or threatening exhibition of it"). Instead of sending the question to the jury, the court found the offense dangerous and sentenced Defendant accordingly. This finding led the court to apply A.R.S. § 13-704 instead of A.R.S. § 13-702 in sentencing, resulting in an illegal sentence.
¶13 Defendant also contends that the trial court erred in considering aggravating circumstances not alleged by the state or found by the jury in imposing the presumptive sentence. However, the sentencing statutes "generally provide that a defendant 'shall' receive a specific term of imprisonment" -- the presumptive. State v. Fell, 210 Ariz. 554, 558, ¶ 13 (2005). The sentence imposed by the court was the presumptive term under the statute, not an aggravated sentence. A.R.S. § 13-704(A). The court
specified at sentencing that it only considered aggravating factors to decide if the presumptive term was appropriate, and concluded that there was insufficient mitigation to sentence Defendant to less than the presumptive. This is not fundamental error.
CONCLUSION
¶14 We have reviewed the record for fundamental error and find fundamental error in the sentencing. Accordingly, we affirm the conviction and remand for resentencing.